,       iVBOR.  IN  ITS  RELATIONS 

A 


oB,  TO  LAW 

11  F.J.Stimson 


d   helov 


ynMosrm  *sraow^  sen 

nooHos  TVKHOM  axv  ^  ^ 


SLATE  NORMAL  SCHOOL, 

4 


LABOR   IN   ITS   RELATIONS  TO 
LAW 


g.^ 


LABOR  IN  ITS  RELATIONS 
TO    LAW 


jfonr  Xccturcs  ^clivcicCt  at  tbc  ip»lv»moiitb 
Scbool  of  Btbics,  3iilB,  lSi)3 


nv 


F.   J.   STIMSOX 


Al'THOR    OK      'AMKRICAN    STATUTE    LAW,"    "  HAND-DOOK    TO    TUB 
LABOR    LAW    OK    IHK    INrrKI)    fcllATKS,"    ETC.,    K  1  C. 


//--  5 


XKW    YORK 

charij:s    scribnkr's    sons 

1895 

Oct.     So2, 


Copyright,  1895,  by 
CHARLES   SCRIBNER'S   SONS 


TROW  DIRECTOR'^ 

WRINTINQ   AND   eOOKB'NDINQ  COMPANy 

NfcW    rOHK 


HP 


CONTENTS 


I 

PAGE 

History  of  the  Law  of  Labor i 


II 

TiiK  Employment  Contract, 40 

III 

Strikes  and  Boycotts, 78 

IV 

Forecast  ok  the  Fi  ture, iiS 


LABOR   IN   ITS   RELATIONS  TO 
LAW 

I 

HISTORY    OF   THE'  LAW   OF    LABOR 

Earliest  Employment  Relation  was  Slavery. 

Logically,  the  simplest  relation  of  employer  and 
employee  is  that  of  slavery,  and  it  is  convenient,  in 
sketching  the  history  and  tendency  of  this  em- 
ployment relation — certainly  the  second  in  impor- 
tance of  human  relations — that  this  is  so  ;  for  his- 
torically, also,  it  came  first ;  the  simplest  came 
first. 

The  greatest  ethical  lesson  of  modern  historical 
research  has,  I  think,  been  to  tlestroy  the  fiction 
of  the  Golden  Age.  For  all  classical  writers  refer 
to  an  actual  time  when  all  things  were  perfect, 
and  whence  humanity  has  deteriorated  to  modern 
faults  and  modern  laws.  Perhaps  there  is  a  sur- 
vival of  this  cla.ssic  tradition  in  the  rhetoric  of  the 
modern  demagogue,  who  usually  assumes  that 
mankind,  and  more  specifically  the  growing  gen- 


2  LABOR  IN   ITS  RELATIONS  TO  LAW 

eration,  are  naturally  perfect,  and  would  always 
seek  the  better  reason  were  it  free  to  them  to 
choose.  Unhappily,  neither  the  age  of  gold  nor' 
the  heart  of  gold  is  a  reality.  They  are  to  be  won 
by  hard  work,  and  by  training  of  character,  con- 
sciously directed  ;  and  the  solace  lies  in  this,  that 
we  have  now  put  them  in  the  future  rather  than 
the  past. 

The  earliest  and  simplest  relation,  then,  of  human 
labor  is  that  of  slavery ;  and  the  conflicts  of  this 
day  are  nothing  new,  but  are  to  be  found  in  his- 
tory, particularly  in  the  history  of  our  own  race. 
Perhaps,  even,  we  shall  not  find  the  remedies  new, 
or  new  in  principle,  at  least,  though  we  may  have 
better  hope  of  them  in  our  time  than  of  old,  now 
that  the  coarsest  work  is  done  for  us  by  nat- 
ural agencies,  and  humanity  has,  or  should  have, 
leisure  for  reason  and  kindliness. 

Present  Altruistic  Tendency  to  Favor  Labor. 

The  writings  of  Kidd  and  others  are  not  neces- 
sary to  tell  us  that  the  universal  tendency  among 
people  who  think  to-day  is  one  of  allowance  for 
presumption  in  favor  of  the  laborer  as  against  his 
employer.  Possibly  this  is  solely  due  to  the  fact 
that  the  great  sins  of  the  employer  of  labor  are  all 
past.  As  Herbert  Spencer  has  pointed  out,  com- 
plaints only  become  audible  when  the  serious  dan- 
ger of  their  cause  has  been  removed.     So,  women 


HISTORY  OF  THE   LAW  OF  LABOR  3 

never  complained  of  dependence  until  the  law  be- 
gan to  make  them  independent.  But  I  think  we 
are  all  glad  of  this  fact  —  glad  that  our  news- 
papers, our  speakers,  and  our  writers  are  easily  led 
to  take  a  side,  where  they  can,  for  the  cause  of 
labor.  The  world  has  been  organized  alwa}^  in  the 
interest  of  the  clever  few.  No  greater  interest  lies 
in  life  to-day  than  how  so  to  regulate  it  as  to  give 
the  multitude  their  chance.  I  assume  that  we  all 
come  here  predispositioned  to  that  side.  I  shall 
frankly  take  that  position  in  these  lectures.  But 
if  we  so  put  ourselves  in  the  place  of  the  laborer, 
or  the  laborer's  friend,  our  first  duty  is  clearly  to 
see  that  no  fault,  no  unfairness,  no  back-sliding 
into  older,  worse  conditions  be  on  our  side.  As 
the  advocate  of  more  equitable  treatment  for  work- 
ingmen  we  should  come  into  our  court  with  clean 
hands.  I  say  this  at  the  start  lest  you  should 
later  think  me  over-scrupuloas  in  showing  where 
modern  labor  agencies  are  unjust,  where  they 
overstep  the  mark,  where  they  restrict  liberty — 
Anglo-Saxon  liberty  ;  the  kind  that  our  race  alone 
has  won — and  where  they  show  a  tendency  to  go 
back  to  the  cruder  remedies  of  earlier  times,  or  to 
the  less  ennobling  social  order  of  inferior  races. 

Agricultural  Labor  Peculiar  in  its  Conditions. 

I  shall  not  delay  to  speak  of  agricultural  labor. 
The  farmer  and  the  husbandman  have  their  own 


4  LABOR  IN  ITS  RELATIONS  TO  LAW 

problems  to  solve ;  they  are  affected  by  peculiar 
conditions,  by  necessary  peculiarities  in  tlie  owner- 
ship of  the  soil,  the  nature  and  proprietorship  of 
the  land,  their  raw  material,  being  the  land  itself. 
So  far  as  their  conditions  can  be  altered  by  any- 
thing we  can  do,  they  are  benefited  by  the  gen- 
eral advance  of  other  laborers  as  they  are  injured 
by  their  general  degradation.  But  the  fact  that 
the  problems  of  agricultural  labor  are  peculiar  is 
shown  as  clearly  in  the  latest  statutes  of  our  West- 
ern States — in  Nebraska,  for  instance,  whose  drastic 
eight-hour  law  did  not  pretend  to  extend  itself  to 
the  people  on  farms — as  in  the  earliest  known  con- 
dition of  things  in  England,  where  the  villain  was 
appendant  to  the  land  like  a  tree  and  could  only 
be  severed  from  it  by  death  or  sale.  Still  he  was 
never  a  slave.  It  is  important  to  remember  this, 
as  for  a  long  time  the  contrary  theory  was  main- 
tained ;  but  even  the  agricultural  laborer  was  never 
a  slave  in  England.  There  was  a  real  bargain, 
says  Thorold  Rogers,  between  lord  and  serf.  The 
serf  may  have  had  few  rights  of  property,  but  he 
had  more  rights  of  person,  and  he  was  at  least  se- 
cure from  dispossession.  Although  he  was  dis- 
abled from  migrating  to  any  other  habitation  than 
the  manor  of  his  settlement,  and  could  not  bear 
arms  in  the  militia,  he  always  could  bear  arms  in 
the  army  of  the  king ;  and,  so  long  as  he  stayed 
at  home,  his   relation  to  the  lord  was  a  definite 


HISTORY  OF  THE   LAW  OF  LABOR  5 

contractual  right,  which  might  be  commuted,  and 
early  was,  into  a  small  money  ])ayment,  whicli 
is  practically  indistinguishable  from  rent  for  his 
land. 

But  Slavery  never  Existed  Among  Anglo-Saxons. 

We  start,  then,  here  :  Though  slavery  is  the 
simplest  labor  relation,  it  has  not  existed,  at  least 
within  historic  times,  in  our  race — a  peculiar  rea- 
son why  we  may  claim  England  as  the  birthplace 
of  modern  industrial  conditions.  And  if  the 
agricultural  laborer  was  not  a  slave,  the  artisan  was 
still  less  so.  No  vestige,  in  the  earliest  times,  of 
any  servile  relation  can  be  found.  Artisans  were 
localized,  it  is  true,  because  staying  in  one  place 
was  part  of  the  general  social  condition  of  the 
time.  The  smith,  the  farrier,  the  two  or  three 
shepherds,  the  miller,  later  the  carpenter,  the  tan- 
ner or  shoemaker,  later  still  the  weaver  and  the 
baker,  each  belonged  to  one  or,  at  most,  to  two 
or  three  neighboring  communities,  and  .served  all 
indiscriminately  for  a  fi.xed  wage,  paid  at  first  by 
the  day,  later  by  the  piece  ;  and  if  the  lord  him- 
self exacted  his  services  and  did  not  pay  for  the 
same  with  the  rest,  it  was  either  a  clear  extortion 
(for  we  are  here  stating  the  facts,  not  denying  that 
there  grew  up  in  the  feudal  baron  a  very  definite 
notion  of  servile  relation  from  his  tenants  to  him) 
or    supposed    to    be    in    commutation    of    rent. 


6  LABOR  IN  ITS  RELATIONS  TO  LAW 

Later  attempts  were  indeed  made — one  in  the 
time  of  Henry  II.,  another  in  that  of  Elizabeth — 
on  the  part  of  the  privileged  classes  to  put  the  in- 
dustrial laborer  also  into  servile  relation,  and  their 
chancellors  naturally  endeavored  to  justify  the 
step  by  historic  precedent  ;  but  I  think  I  have 
stated  the  best  modern  opinion  of  the  fact. 

Earliest  English  Labor  Relation  One  of  Separate  Con- 
tract. 

We  start,  therefore,  with  our  industrial  laborer 
a  free  individual,  and  his  relation  one  of  separate 
contract  with  his  employer.  Such  is  substantially 
the  letter  of  the  law  to-day.  But  the  very  latest 
definition  I  find  in  one  of  the  very  latest  works  on 
labor,  published  only  last  year,  is,  that  the  essence 
of  the  modern  trade-union  is  "  collective  bargain- 
ing," that  is,  endeavoring  to  enforce  a  relation, 
not  of  separate  and  separable  contract  between  the 
employers  and  each  employee,  between  the  lord 
and  each  peasant,  but  a  contract  between  the  em- 
ployer, or  the  neighboring  or  related  bodies  of 
employers,  and  the  workman,  or  a  controlling 
force  of  the  workmen  organized  into  a  trade- 
union.  But  thus  far,  also,  we  had  progressed 
some  eight  hundred  years  ago — in  the  medieval 
guild.  The  substantial  distinction  between  the 
oldest  form  of  guild  and  the  modern  trade-union 
would  appear  to  be  that  the  bond  of  the  guild  was 


HISTORY  OF  THE   LAW  OF  LABOR  7 

rather  local,  while  that  of  the  trade-union  is  the 
nature  of  the  employment.  Still,  even  in  tliis 
particular,  as  we  all  know,  the  general  guild  of  an 
English  borough  was  soon  differentiated  into  the 
separate  guilds  of  the  various  crafts,  arts,  or  mys- 
teries which  made  up  its  industrial  body  politic. 
And  again,  just  as  the  latest  report  of  the  British 
Royal  Commission  comjilains  that  the  essence  of 
trade-unionism  is  not  solidarity,  but  protection  of 
a  special  trade  or  part  of  it ;  so  the  essence  of  the 
mediaeval  guild  was  monopoly.  Perhaps  its  ear- 
liest object  was  to  prevent  the  employment  of 
strangers,  and  our  oldest  law  reports  are  full  of 
cases  of  subtle  by-laws  and  regulations  which  far 
surpass  in  complexity  the  restrictions  of  the  nar- 
rowest trade-union  or  the  most  exclusive  modern 
club.  The  Royal  Commission's  report  just  men- 
tioned complains  that  when  the  representatives  of 
the  Amalgamated  Society  of  Engineers  spoke  of 
the  necessity  of  absorbing  the  unem])loyed,  they 
announced  their  intention  of  jjutting  further  re- 
strictions on  the  admission  of  apprentices  to  their 
trade.  In  other  words,  they  contem])lated  not 
the  employment  of  the  unemployed,  but  their  ex- 
clusion from  the  organization  and  industry  of  the 
Amalgamated  Society  of  Engineers.  Now,  most 
of  the  things  which  seem  to  us  to  smack  of  slavery 
in  mediceval  regulations  arise  from  this  ])rinciple, 
which  is  really  one  oi privilege.     Membership  in  a 


8  LABOR  IN   ITS  RELATIONS  TO  LAW 

local  guild  was  a  birthright.  It  was,  therefore, 
no  such  great  unfairness,  that  a  person  who  sought 
employment  in  some  other  town  might  be  dragged 
back  to  his  native  field  to  labor,  when  it  was  thus 
artificially  protected  for  him.  This  was  the  chief 
artificial  regulation.  Otherwise  the  relations  of 
laborer  and  lord  were  left  much  to  settle  them- 
selves, both  sides  relying  on  natural  causes  for  the 
supply  of  laborers  and  of  labor  to  be  done.  The 
lord  could  exact  a  fine  from  an  absconding  serf; 
on  the  other  hand,  the  serf  could  not  gain  en- 
trance in  the  guild  of  a  town  not  his  own  until 
he  had  resided  and  worked  in  it  for  a  year  and  a 
day.  There  was  no  attempt  at  the  regulation  of  the 
price  of  labor  ;  but  for  some  centuries  matters  went 
on  in  this  way — a  condition  of  affairs  by  no  means 
so  unlike  that  now  recognized  by  law  as  were  con- 
ditions which  afterward  happened  in  the  sixteenth, 
or  may  now  happen  in  the  twentieth,  century. 

And  the  law  never  attempted  to  fix  the  price  of 
the  raw  material  ;  but  it  did  soon  attempt  to  fix 
that  part  of  the  price  of  a  necessary  commodity 
which  was  determined  by  human  agencies  alone. 
And  this  would  appear  to  have  been  the  danger- 
ous precedent. 

The  Statute  of  Laborers. 

So  matters  went  on  until  the  middle  of  the  four- 
teenth century,  when  was  passed  the  Statute  of 


HISTORY  OF  THE   LAW  OF   LABOR  9 

Laborers.  Up  to  that  time  matters  had  gone  on 
fairly  well,  and  had  adjusted  themselves.  The 
agricultural  laborer  got  wages  sufficient  for  his 
support,  the  artisan  from  two  to  three  times  as 
much,  the  clerk  or  scribe  rather  less  than  the  art- 
isan ;  nor  were  the  hours  of  labor  long.  Thorold 
Rogers  proves  pretty  conclusively  that  they  were 
probably  only  eight  hours  a  day,  and  the  workman 
was  paid  extra  for  overtime.  What  brought  this 
state  of  affairs  to  an  end,  and  that  in  a  purely  for- 
tuitous way,  appears  to  have  been  the  great  plague, 
known  as  "  the  black  death,"  in  1348.  The  first 
effect  of  this,  of  course,  by  vastly  decreasing  the 
supply  of  labor,  was  to  double  or  treble  wages. 
Prices  in  general  went  up,  though  not  in  the  same 
proportion.  The  small  farmer  was  little  injured  ; 
but  the  large  land-owner,  the  lord,  or,  as  we  should 
say,  the  capitalist,  thought  he  was  ruined.  Then, 
with  the  bad  example  of  the  laws  attempting  to 
regulate  prices  before  him,  he  induced,  first,  the 
king  to  issue  a  proclamation,  that,  despite  the  de- 
mand for  labor,  no  higher  than  customary  wages 
should  be  paid  ;  and  then,  as  this  was  necessarily 
disregarded,  the  Parliament  i)assed  the  statute 
which  remained  a  law  until  the  fifth  year  of  Queen 
Elizabeth,  and  contained  eight  clauses,  of  which, 
leaving  out  those  which  merely  concerned  the 
form  of  penalty,  four  concern  us  to-day.  These 
four  are,  substantially  : 


lo  LABOR  IN  ITS  RELATIONS  TO  LAW 

1.  No  person  under  sixty,  serf  or  free,  shall  de- 
cline to  undertake  farm  labor  at  the  wages  that 
had  been  customary  in  the  year  1347,  except  they 
were  possessed  of  lands  or  private  means  or  en- 
gaged in  some  mechanical  or  mercantile  industry  ; 
the  lord  having  the  first  claim  to  their  labor,  but 
those  who  declined  to  work  either  for  him  or  for 
others  could  be  sent  to  the  common  jail. 

2.  Artificers  were  made  liable  to  the  same  con- 
ditions, and  the  artificers  enumerated  were  sad- 
dlers, tanners,  curriers,  shoemakers,  tailors,  smiths, 
carpenters,  masons,  tilers,  pargetters  (plasterers), 
carters,  and  others.  Doubtless  they  Avould  have 
extended  the  law  to  operatives  in  the  textile  in- 
dustries, but  that  at  that  time  these  were  neces- 
sarily possessed  of  special  skill,  and  their  craft  was 
enough  of  a  "  mystery  "  to  lie  outside  of  the  care 
of  the  English  privileged  classes,  it  being  mostly 
in  the  hands  of  Flemings  or  other  foreigners. 

3.  That  food  must  be  sold  at  reasonable  prices, 
and, 

4.  Alms -giving  to  able-bodied  laborers  was 
strictly  forbidden. 

Labor  Compulsory. 

It  will  be  noted  that  there  are  three  important 
principles  in  this  statute  :  first,  that  of  compul- 
sory labor;  second,  the  legal  limitation  of  wages; 
and  third,  the  prohibition  of  alms-giving,  or  chari- 


HISTORY  OF  THE  LAW  OF  LABOR  n 

table  support.  The  first  principle  may  have  had 
some  effect  during  the  two  or  three  centuries 
through  which  the  law  lasted  ;  but  Thorold 
Rogers  tells  us  that  the  second  principle — that  of 
the  regulation  of  wages — did  not  in  practice  work, 
but  was  commonly  evaded,  even  in  the  case  of 
agricultural  laborers,  where,  from  the  nature  of 
the  case,  it  had  most  effect ;  and  the  third  prin- 
ciple, that  of  forbidding  alms-giving,  was  radi- 
cally altered  by  the  statute  of  Elizabeth,  which 
founded  the  modern  poor-law  system  of  England, 
and  which  the  nineteenth  century  has  come  to  be- 
lieve was  the  greatest  of  all  agencies  in  the  pau- 
perization of  English  labor. ^  We  will  notice  in 
passing  that  at  this  time — the  fourteenth  century 
— women  were  employed  in  field  work,  being  paid 
at  the  rate  of  a  penny  a  day,  substantially  less 
than  the  ordinary  payment  of  male  labor.  De- 
spite this  Statute  of  Laborers,  the  ordinary  wages 
of  agricultural  labor  increased,  in  men's  work 
about  fifty  per  cent.,  while  in  women's  work  it  was 
doubled.  The  peasants,  says  Thorold  Rogers,  met 
the  laiu  hy  combinations ;  or,  in  modern  English, 
the  serfs  entered  into  what  are  now  called  trade- 
unions,  and  supported  each  otlicr  in  resistance  of 

■  See  the  monumental  evidence  of  the  efTect  of  such  state 
help,  both  on  economic  and  moral  conditions,  contained  in 
the  voluminous  report  to  the  House  of  Commons  in  1S34, 
reprinted  by  special  order  in  1885. 


12  LABOR  IN  ITS  RELATIONS  TO  LAW 

the  law  and  in  demands  for  higher  wages.  Pos- 
sibly as  a  consequence  of  this  Statute  of  Labor- 
ers came  the  celebrated  insurrection  of  Wat  Ty- 
ler, as  a  result  of  which  all  the  incidents  of 
villainage  were  abolished,  and  all  laborers  de- 
clared free  by  the  sovereign  of  England.  It  is 
noteworthy  that  Kent  took  the  lead  in  this  move- 
ment ;  ''for  there  never  have  been  serfs  in  Kent. ' ' 
To  have  been  born  in  that  county  was  a  bar  to 
the  proceedings  by  which  a  lord  claimed  the  re- 
covery of  his  serf.  Attempts  were  constantly 
made  to  enforce  the  Statute  of  Laborers  by  sub- 
sequent acts  of  Parliament ;  but,  says  Thorold 
Rogers,  the  fifteenth  century  was  the  golden  age 
of  the  English  laborer,  if  we  are  to  interpret  the 
wages  which  he  earned  by  the  cost  of  the  neces- 
saries of  life.  These  efforts  failed,  and  the  rate 
kept  steadily  high,  the  wages  of  the  artisan  being 
generally  sixpence  a  day,  and  the  agricultural 
laborer  fourpence  ;  and  women  received  from  half 
to  two-thirds  as  much.  Wages  were  reduced  a 
century  later,  under  Henry  VIIL ,  by  the  indirect 
process  of  debasing  the  coinage  ;  and  by  an  at- 
tempt, partially  successful,  to  suppress  the  guilds 
and  confiscate  their  property,  both  the  laborer's 
power  of  resistance  and  his  benefit  society  were 
taken  away. 


HISTORY  OF  THE   LAW  OF  LABOR  13 

Regulation  of  Wages  Finally  Successful  Under  Eliza- 
beth. 

Then  came  the  statute  of  EHzabeth,  which  first 
successfully  imposed  a  legal  restraint  upon  wages, 
both  in  husbandry  and  in  handicrafts,  and  this 
system  was  continued  under  legal  sanction  until 
1 8 1 2 ,  and  "  by  a  sufficient  understanding ' '  for  long 
after  that  date.  All  persons  able  to  work  as 
laborers  or  artisans,  and  not  having  independent 
means,  were  compelled  to  work  upon  the  farms. 
The  statute  both  fixed  the  hours  of  work  and 
gave  the  justice  power  to  fix  the  rate  of  wages. 
Agricultural  labor  was  further  depressed,  and  in- 
dustrial labor  somewhat  protected,  by  that  pro- 
vision of  the  statute  which  prohibited  anyone 
from  exercising  any  trade,  craft,  or  occupation 
then  in  use  in  England  and  Wales  without  first 
serving  an  apprenticeship  of  seven  years.  This 
part  of  the  statute,  passed  in  1662,  was  not  re- 
pealed until  1875.  I  shall  postpone  for  the  pres- 
ent any  notice  of  those  statutes  which  provided  for 
the  suppression  of  combinations  among  workmen 
for  the  raising  of  their  wages,  as  this  matter,  be- 
longing rather  to  the  law  of  remedies,  will  come 
more  naturally  in  a  subsequent  lecture  ui)on 
strikes  and  boycotts;  but  will  note  here  that  in 
1796  a  statute  fixed  a  day's  work  at  twelve  hours, 
with  one  hour  for  dinner,  probably  a  longer  day 
than  was  enacted  three  hundred  years  before. 


14  LABOR  IN  ITS  RELATIONS  TO  LAW 

General  Review. 

So  much  for  general  review  of  the  history  of 
Enghsh  labor  legislation,  and  it  may  be  sum- 
marized in  the  statement  that  the  rate  of  wages, 
originally  left  to  natural  laws,  was  attempted  to 
be  fixed  by  law  during  about  three  centuries,  and 
a  strict  apprenticeship  both  required  and  limited; 
in  other  respects  industrial  labor  was  always  free, 
and  at  liberty  to  seek  employment  where  it  would, 
subject  only  to  the  limitations  of  place,  which 
were  imposed  by  natural  custom  or  by  the  system 
of  residence  in  corporate  guilds  and  to  the  limita- 
tions, or  the  protection,  as  to  rates ^and  employ- 
ment which  were  furnished,  in  the  interest  of  the 
laborer  or  handicraftsman,  by  his  own  trade- 
guilds;  and  since  about  1812  it  has  been  free  in 
all  respects,  even  as  to  wages  and  prices.  There 
are  thus  (but  separated  by  no  clear  demarcation) 
four  stages — serf-relation,  guild  control,  state  con- 
trol, and  free  contract. 

Modern  Factory,  etc.,  Legislation. 

Nothing  in  a  world  of  uncertainty  can,  how- 
ever, remain  crudely  logical.  The  perfect  system 
of  laissez-faire  hardly  lasted  a  generation  when, 
for  an  aggregation  of  labor,  it  gave  way  to  the 
principle  of  the  factory  acts.  These  began  about 
1804;  and  if  not  strange,  it  is  suggestive,  that 
the  culminating  statute,  the  ten-hour  law  of  1847, 


HISTORY  OF  THE   LAW  OF  LABOR  15 

sii:,niali/.cd,  with  the  same  rejoicings  on  the  part  of 
the  laboring  world,  a  return  to  the  same  principle 
of  privilege  or  state  control  that  had  been  abol- 
ished by  the  laboring  world  amid  bonfires  and 
bell-ringing  in  the  Paris  of  1 791,  just  fifty  years 
before ;  the  only  difference  being  that  the  older 
system  controlled  prices,  not  conditions ;  the  re- 
newal controlled  conditions  and  not  prices. 

It  was  doubtless  the  modern  factory  which 
brought  about  the  change.  The  increased  jtro- 
portion  of  cai^ital  to  labor  in  production,  but  still 
more  the  necessary  localization,  with  its  attendant 
evils,  was  making  the  mill-hands  villeins  append- 
ant to  the  factory  as  truly  as  in  early  times  there 
had  been  villeins  appendant  to  the  land.  'I"he 
conditions  of  child-labor  and  woman-labor,  in 
particular,  were  rapidly  becoming  intolerable. 
Practically  as  unable  to  leave  the  factory  as  tiie 
villeins  to  leave  the  manor,  the  tyranny  was  as 
insufferable,  their  conditions  of  health  and  morality 
infinitely  worse.  Adam  Smith  himself  foresaw 
that  before  the  evils  of  this  artificial  condition 
the  logic  of  laisscz-fairc  would  have  to  yield. 
The  factory  acts  passed  up  to  1847  were  rapidly 
copied  in  the  manufacturing  States  of  this  country. 
And  substantially  all  the  i)rinci])les  of  our  later 
legi.slation  were  first  embodied  in  these  statutes 
passed  in  P^ngland  during  the  early  years  of  the 
reign  of  Victoria.      It  may  be  well  to  get  a  gen- 


i6  LABOR  IN  ITS  RELATIONS  TO  LAW 

eral  view  of  these  in  the  time  remaining  for  this 
lecture,  leaving  out  only  the  law  directly  relating 
to  the  labor  contract  to  be  the  main  subject  of 
the  next. 

Eight-hour  Laws. 

First,  let  us  consider  the  hours  of  labor.  It 
may  be  generally  stated  that  no  attempt  has  yet 
been  made  by  legislation  in  England  or  America 
to  prescribe  for  how  long  a  period  of  each  day, 
in  general  occupations,  a  man  twenty-one  years 
old  shall  work.  I  have  noted  that  by  the  early 
custom  of  England  only  eight  hours  was  probably 
considered  a  full  day,  and  first  by  statute  in  tlie 
early  part  of  this  century  it  was  fixed  at  twelve, 
which  statute,  if  not  inoperative,  was  soon  re- 
pealed. In  England  to-day  there  is  great  dis- 
agreement, both  among  employers  and  among 
laborers,  as  to  the  advisability  of  a  general  eight- 
hour  law.  There  are  now  said  to  be  six  million 
non-unionist  workers,  and  only  one  million  trade- 
unionists,  up  to  date,  in  England  ;  the  six  million 
non-unionists  do  not  demand  any  system  of  indus- 
trial regulation  of  hours  of  labor  whatever,  nor 
even  do  all  the  trade-unionists.  Many  of  the 
trades  complain  that  neither  employer  nor  em- 
ployed could  exist  under  any  sj'stem  of  regulations 
that  prevented  thKm  from  making  up  in  good  times 
for  their  losses  incurred  in  periods  of  depression. 


HISTORY  OF  THE   LAW  OF  LABOR  17 

Perhaps,  however,  the  bulk  of  trade-unionists  have, 
in  England,  accepted  the  principle  of  depriving 
the  individual  of  his  full  freedom  of  contract  in 
settling  his  hours  of  labor,  and  they  partly  justify 
by  the  plea  that  such  freedom  is  irrevocably  lost 
already;  inasmuch  as  modern  business  establish- 
ments can  be  conducted  only  on  the  basis  of  uni- 
formity in  the  men's  hours  of  labor  with  the 
women's  and  children's  which  are  so  regulated  ; 
and  the  chief  remaining  objection  in  the  trade- 
unions  to  the  government  fixing  the  hours  of  labor 
comes  only  in  those  trades  which  are  directly  sub- 
ject to  foreign  competition. 
/' 
In  the  United  States. 

In  this  country  the  tendency  has  not  gone  so 
far.  We  shall  speak  of  women  and  children  in  a 
moment ;  but  for  full-grown  men  there  is  no  ef- 
fort, so  far  as  I  know,  nor  has  any  general  statute 
yet  been  passed,  which  prescribes  how  long  they 
shall  work. 

The  Legislature  of  Massachusetts  passed  a  reso- 
lution this  year  instructing  its  Commissioners  on 
Uniformity  of  Law  to  introduce  a  recommendation 
at  the  next  meeting  of  the  National  Conference  of 
such  Commi.ssions  from  all  the  States,  to  consider 
whether  by  voluntary  action  the  legal  hours  of 
labor  in  the  several  States  of  the  Union  might  not 
well  be  made  the  same.      But  it  is  doubtful  whether 


1 8  LABOR  IN  ITS  RELATIONS  TO  LAW 

this  resolution  was  not  meant  primarily  to  apply 
only  to  the  usual  statute  affecting  the  labor  of 
women  and  children,  or  to  the  statute  prescribing 
how  long  a  day's  labor  shall  be,  in  the  absence  of 
express  contract.  »The  nearest  law  passed  by  any 
State  in  this  country  to  a  general  regulation  of 
the  hours  of  labor  was  that  of  the  State  of  Ne- 
braska, passed  in  1891,  which  provided  that  eight 
hours  should  constitute  a  legal  day's  labor  for  all 
classes  of  mechanics,  servants,  and  laborers,  except 
those  engaged  in  domestic  or  agricultural  labor. 
Even  this  statute  did  not  prohibit  contracts  for  a 
longer  day,  but  required  double  rates  for  such 
overtime;  and  the  statute  itself  has  been  declared 
unconstitutional  by  the  Supreme  Court  of  Ne- 
braska in  a  decision  rendered  a  few  months  ago. 

Constitutionality  of  such  Laws. 

Whether  such  statutes  impose  such  a  limitation 
upon  personal  freedom  as  to  be  unconstitutional 
under  the  inherited  principles  of  the  Anglo-Saxon 
race,  or  even  perhaps  under  our  written  constitu- 
tions, is  one  of  the  most  interesting  questions  now 
in  the  public  mind,  which  we  shall  consider  more 
fully  when  we  come  to  speak  specifically  of  the 
labor  contract  itself. 

Exceptions. 

Going  on  now  with  our  general  view,  the  next 
thing  to  note  is  that  we  do  find  a  number  of  statutes 


HISTORY  OF   TUn   LAW  OF  LABOR  19 

which  prescribe  what  shall  1)0  the  length  of  a  day's 
labor  in  the  absence  of  express  contract  to  the 
contrary,  and  also  the  entering  wedge  of  the  at- 
tempt to  regulate  labor  through  principles  of  State 
socialism  in  limiting  the  time  of  labor  done  for 
the  State,  or  for  a  town,  or  municipality,  or  any 
contractor  of  public  work.  Thus,  in  the  absence 
of  contract,  eight  States  have  limited  the  hours  of 
labor  to  eight  hours  per  day,  and  six  to  ten  hours. 
The  laws  of  Illinois  also  provide  for  an  eight-hour 
day,  but  expressly  state  that  overtime  work  for  ex- 
tra compensation  may  be  contracted  for.  In  New 
Jersey  a  week's  work  may  not  exceed  fifty-five 
hours.  This  is  as  far  as  any  of  our  States  have 
yet  gone  in  the  direction  of  limiting  general  labor 
of  full-grown  men  ;  but  several  States,  and  the 
United  States  law,  limit  hours  of  labor  done  for 
the  State  or  on  public  work  to  eight  hours,  and 
Massachusetts  and  Texas  to  nine. 

Regulation  of  Wages. 

No  regulation  whatever  as  to  price  has  yet  been 
attempted  in  this  country,  or  is  attempted  in  mod- 
ern times  in  England,  with  the  solitary  exception 
that  Massachusetts  provides  that  cities  shall  pay 
laborers  a  rate  not  exceeding  $2  a  day  ;  and, 
as  is  doubtless  familiar  to  you,  many  of  our 
towns  and  cities  fix  a  rate — usually  $2 — by  ordi- 
nance, that  is,  by  voluntary  municipal  contract, 


20  LABOR   IN   ITS  RELATIONS  TO  LAW 

not  by  general  law.  There  is  undoubtedly  a 
strong  tendency  in  this  country  to  fix  all  public 
work  at  a  rate  somewhat  higher  than  the  market 
demands,  usually  $2  a  day  ;  and  in  England 
to  require  all  public  employers  to  give  what  is 
called  a  living  wage  ;  but  so  far  the  tendency  has 
not  become  the  fact.  Indeed,  the  report  of  the 
last  English  Labor  Commission  shows  that  the  em- 
ployees of  public  works  are  paid,  if  anything, 
rather  less  than  the  average  rate  outside,  which 
difference,  it  is  said,  is  made  up  to  the  workmen 
by  greater  certainty  of  employment. 

Women-and-Children  Eight-hour  Laws. 

When  we  come  to  women  and  children,  we  find 
a  great  difference.  Undoubtedly,  this  distinction 
rests  on  the  theory  that  both  women  and  children 
are  wards  of  the  State,  the  old  theory  being  that 
women  were  not  fully  citizens,  and  might  be, 
therefore,  the  subject  of  special  protection.  Sub- 
stantially half  the  States  in  this  country  have  a 
provision  that  women  and  children,  in  factories 
or  workshops  at  least,  may  not  be  allowed  to 
work  more  than  eight  hours  a  day,  this  being  the 
law  in  Illinois  and  Wisconsin,  or  ten  hours  a  day 
in  New  England,  New  York,  and  the  Northern  and 
Central  States,  or  in  any  case  more  than  forty- 
eight  or  fifty-eight  hours  a  week,  respectively. 
This  statute  was  sustained  in  Massachusetts  some 


HISTORY  OF  THE   LAW  OF  LABOR  21 

years  ago  on  the  express  ground  that  it  was  a 
proper  pohce  regulation  ;  but  probably  really  on 
the  theory  that  I  have  adverted  to,  that  women 
and  children  might  constitutionally  be  protected 
in  making  their  own  contracts.  In  Illinois,  on 
the  other  hand,  within  a  few  weeks,  the  law  as  to 
women  has  been  declared  wholly  unconstitutional 
on  the  ground  that  the  modern  theory  is  that  a 
woman  is  a  citizen,  and  that  as  such  she  has  the 
same  right  as  a  man  has  to  make  her  own  con- 
tracts. This  is  certainly  the  logical  modern  view, 
and  it  will  be  curious  to  see  which  view  will  gen- 
erally prevail  throughout  the  United  States. 

Unconstitutional  in  States  where  Women  Vote. 

It  is  at  least  very  clear  that  in  those  States 
which  have  adopted  woman  suffrage,  there  will  be 
no  longer  any  constitutional  justification  for  thus 
artificially  protecting  woman  from  making  such 
contract  as  she  deems  most  advantageous  to  her- 
self. Clearly,  to  do  so  will  be  to  put  her  at  a 
disadvantage  in  industrial  competition  with  men, 
which  disadvantage,  however  slight  in  effect,  will 
afford  a  i)retext  for  retaining  her  present  low  rate 
of  wages,  or  perhaps  for  insisting  on  making  it 
lower  still.  Therefore,  in  woman -suffrage  States, 
any  limitation  thus  imposed  on  the  hours  of  labor 
of  women  will  have  to  be  inijiosed  also  on  men  ; 
and  as  our  courts  now  stand,  it  is  pretty  clear  that 


22  LABOR  IN  ITS  RELATIONS  TO  LAW 

they  will  permit  this,  if  at  all,  only  in  the  case  of 
labor  employed  by  corporations ;  and  if  this  ex- 
ception were  generally  made,  it  would  put  corpo- 
rations at  such  a  disadvantage  that  they  would 
probably  turn  themselves  into  private  trusts  for 
the  purpose  of  evading  the  law,  and  this  could 
probably  be  easily  done.  We  may,  therefore,  ex- 
pect a  check  by  the  courts  to  the  recent  move- 
ment for  statute  regulation  of  labor  hours. 

As  to  Children. 

The  labor  of  children  is  also  covered  by  this 
statute,  and  further,  it  is  common  to  provide  that 
children  between  the  ages  of  twelve  and  fourteen 
and  eighteen  shall  not  be  employed  in  such  a  way 
as  to  wholly  prevent  or  interfere  with  their  com- 
mon-school education.  Under  the  ages  of  eleven 
or  twelve  they  may  not  usually  be  employed  at  all 
in  factories,  and  in  most  of  our  States  not  at  all 
in  mines.  The  present  state  of  English  statute 
law  is  somewhat  similar.  A  child  between  the 
age  of  fourteen  and  eighteen  is  there  termed  a 
"  young  person,"  and  may  be  employed  under 
certain  restrictions,  while  a  child — meaning  a 
person  under  the  age  of  fourteen — has  to  pass  a 
certain  standard  of  education  ;  and  under  the  age 
of  eleven  no  child  may  be  employed  in  factories 
at  all.  It  will  be  noted  that  all  these  acts  con- 
cerning the   labor  of  women  and  children  com- 


HISTORY  OF  THE   LAW  OF   LABOR  23 

monly  apply  to  factories  and  workshops,  not  al- 
ways to  domestic  labor,  even  that  of  sweat-shops, 
and  not  to  simple  domestic  labor  or  agricultural 
labor  at  all.  In  fact,  it  may  be  noted  here  that 
agricultural  labor  is  very  generally  unprotected  by 
law  in  any  respect  whatever,  just  as  its  output  is 
not  protected  by  the  tariff. 

Special  Occupations. 

There  are  a  few  statutes  in  this  country  spe- 
cially regulating  hours  of  labor  in  certain  occu- 
pations, such  as  railroads,  street  railways,  and  sta- 
tionary engines;  but  these  are  perhaps  imposed 
as  much  for  the  protection  of  the  public  as  for 
that  of  the  laborer,  and  the  hours  are  usually  long, 
being  commonly  twelve  hours  a  day  upon  rail- 
roads, and  limiting  the  length  of  continuous  runs 
at  an  even  greater  period  of  time,  provided  a 
night's  rest  is  given  between.  For  the  .safety  of 
others,  special  restrictions  are  also  imposed  on  the 
employment  of  children  in  certain  employments, 
such  as  running  elevators,  or  cleaning  machinery, 
and  children  are  very  generally  prohibited,  in  the 
interests  of  their  own  morals,  from  being  employed 
in  dramatic  exhibitions,  etc.,  under  a  certain  age. 

Legislation  for  Women. 

Of  special  labor  legislation  for  the  protection  of 
women,  other  than  that  concerning  hours  of  labor. 


24  LABOR  IN   ITS  RELATIONS  TO  LAW 

there  is  as  yet  very  little.  There  is  an  almost 
universal  statute  that  women  in  mills,  offices,  and 
shops  shall  be  provided  with  seats.  In  California 
and  Louisiana  the  employment  of  women  was  for- 
bidden in  houses  where  liquor  was  sold  at  retail ; 
but  the  California  court,  following  the  modern 
view  of  women  citizenship,  declared  this  law  un- 
constitutional. Illinois,  California,  and  Washing- 
ton have  adopted  statutes,  and  the  same  thing  is 
in  the  California  constitution,  that  no  person  shall 
be  precluded  or  debarred  from  any  occupation, 
profession,  or  employment,  except  military,  on 
account  of  sex  ;  but  the  Illinois  statute  adds  that 
this  shall  not  be  construed  as  requiring  any  female 
to  work  on  streets  or  to  serve  on  juries.  These 
statutes,  however,  merely  enunciate  the  general 
law.  So  far  as  I  know,  there  is  no  restriction 
upon  women  in  any  State  of  the  Union  going  into 
any  employment  or  avocation  whatever,  unless 
the  employment  be  in  the  nature  of  a  political 
office,  such  as  justice  of  the  peace  or  member  of 
the  bar  ;  and  in  many  States  the  bar  has  already 
been  thrown  open  to  them.  Upon  this  subject 
there  is  much  cry  and  little  wool. 

How  far  this  universal  employment  of  women 
in  factories  and  workshops  away  from  their  homes 
is  an  unmixed  good,  may  seriously  be  questioned. 
It  is  probably  quite  too  late  to  alter  it  in  the  case 
of  factories,  at  least  until  our  economic  condition 


HISTORY  OF  THE   LAW  OF  LABOR  25 

becomes  so  much  imi)roved  as  to  make  it  un- 
necessary ;  but  in  England  there  is  a  strong  feel- 
ing against  it,  as  it  tends  to  lower  the  wages  of 
the  men  and  make  it  necessary  for  all  women  to 
work.  It  is  easy  to  see  that  in  the  case  of  mar- 
ried women,  for  instance,  if  none  of  them  workci, 
none  of  them  would  have  to  ;  but  the  moment 
one  goes  to  the  factory,  the  other  wives  have  to 
do  the  same  if  their  social  condition  is  to  remain 
equal  to  that  of  their  neighbors.  In  the  case  of 
unmarried  women,  their  competition  is  both  more 
necessary  for  some  and  less  necessary  for  others. 
Undoubtedly,  unmarried  women  having  no  other 
means  of  support  should  be  allowed  perfect  liberty 
of  labor  at  any  industry.  But  there  is  a  large  class 
of  unmarried  women,  like  the  daughters  of  opera- 
tives, who  have  homes  of  their  own,  and  simply 
work  for  the  sake  of  spending-money.  It  is  this 
class  whose  competition  may  be  most  dreaded  by 
others.  Women,  too,  have  hitherto  manifested 
much  less  ability  in  defending  their  rights,  and 
much  less  tendency  to  join  hands  with  trade- 
unions.  In  Connecticut,  last  year,  a  bill  was  actu- 
ally introduced  forbidding  married  women  to 
work  in  factories,  and  the  English  reports  are  full 
of  arguments  against  it,  drawn  from  the  inferior 
condition  of  homes  presided  over  l)y  such  women, 
and  the  failing  health  of  children.  It  can  hardly 
be  that  such  a  law  as  the  Connecticut  bill  would 


26  LABOR   IN   ITS   RELATIONS  TO   LAW 

be  wise,  as  it  would  obviously  put  a  premium  on 
immorality  by  enabling  a  man  and  his  mistress  to 
earn  double  as  much  as  a  man  and  his  wife.  But 
the  whole  question  of  the  effect  upon  the  social  or- 
der of  the  unification  of  the  functions  of  men  and 
women,  economically,  has  not  yet  been  seriously 
considered,  much  less  proved. 

Times  of  Payment. 

As  to  the  times  of  payment,  many  of  our 
States  have  adopted  laws  requiring  laborers  to  be 
paid  weekly  or  fortnightly,  though  this  statute  is 
much  more  general  in  the  case  of  corporations, 
for  the  reason  that  it  is  of  doubtful  constitution- 
ality as  applied  to  private  employers.  Indeed,  the 
Supreme  Courts  of  Missouri  and  Arkansas  have 
expressly  so  declared.  The  Supreme  Court  of 
Massachusetts,  on  the  other  hand,  has  just  in- 
structed the  Legislature  that  such  a  law  would  not 
be  unconstitutional  in  that  State,  even  although 
applied  to  private  individuals. 

Truck  Acts. 

In  a  still  greater  number  of  States  there  is  a 
law  that  labor  can  only  be  paid  for  in  lawful 
money,  or  at  least  in  checks  or  orders  redeemable 
in  lawful  money,  and  not  in  truck  or  in  orders 
upon  companies'  stores,  etc.;  and  in  some  States 
it  is  made  illegal  for  employers  of  labor  to  keep 


HISTORY  OF  THE   LAW  OF   LABOR  27 

Stores  for  the  purpose  of  sup[)lying  their  em- 
ployees, or  at  least  to  sell  them  goods  at  higher 
rates  than  to  the  general  public,  or  to  re(iuire 
them  to  trade  at  such  stores.  This  Truck  Act  also 
finds  its  precedent  in  an  English  statute. 

Industrial  Labor  Specially  Privileged. 

It  will  already  have  been  noticed  that  indus- 
trial laborers  as  a  class  are  specially  protected  by 
our  law,  for  there  is  no  statute  limiting  the  time 
during  which  a  farm-hand  or  servant  is  required 
to  work,  and  kw  concerning  mercantile  employees 
and  shop-girls.  We  must  look  fairly  at  what  has 
been  done,  and  must  recognize  that  there  is  even 
danger,  from  the  tendency  to  which  I  adverted  at 
the  beginning,  that  industrial  laborers  should 
come  in  this  country  to  regard  themselves  as  a 
class  specially  privileged. 

Labor  Debts  Preferred. 

And  we  now  come  to  a  body  of  statutes  where 
this  is  even  more  evident.  Debts  for  labor  ser- 
vices are  specially  recognized  and  protected  in 
all  the  States  of  the  Union.  Laborers  commonly 
have  a  preferred  claim  upon  the  a.ssets  of  an 
insolvent  corporation,  or  even  of  an  insolvent  in- 
dividual, or  the  insolvent  estate  of  a  person  de- 
ceased. By  the  statutes  of  some  States  the  stock- 
holders of  corporations  are  individually  liable  for 


28  LABOR  IN  ITS  RELATIONS  TO  LAW 

all  debts  for  labor  done  for  the  corporation  of 
which  they  hold  stock,  and  there  is,  as  you  know, 
a  most  elaborate  body  of  laws  giving  mechanics 
and  laborers  liens  on  the  product  of  their  work. 
And,  furthermore,  this  money  due  for  wages  or 
paid  for  wages  is  specially  protected  to  the  la- 
borer and  his  family  in  the  laws  of  many  States. 
It  cannot  be  attached  or  held  back  by  suit 
against  the  employer.  Sometimes  this  is  true, 
as  by  the  constitution  of  Texas,  to  any  amount ; 
but  more  usually  the  amount  so  protected  to  the 
laborer  or  his  family  is  limited  to  one  or  two 
hundred  dollars,  or  to  wages  owed  for  thirty, 
sixty,  and  ninety  days.  And  by  the  constitution 
of  Virginia,  and  the  laws  of  Michigan,  Kansas, 
and  Nebraska,  no  property,  although  exempt  upon 
legal  proceedings  for  an  ordinary  debt,  may  be 
held  by  its  owner  as  against  a  claim  for  labor  or 
personal  services.  And  in  New  York  State  no 
property  is  exempt  from  execution  upon  judg- 
ments obtained  by  any  female  employee  or  ser- 
vant, nor  court  fees  required  or  stay  of  execu- 
tion granted.  And  the  same  principle  has  been 
adopted  in  Michigan,  Iowa,  and  Virginia. 

A  few  new  State  constitutions  have  expressed, 
in  more  or  less  glittering  generalities,  a  special 
claim  also  that  labor  has  upon  the  law-making 
body  of  the  State.  Thus,  by  the  constitutions  of 
Pennsylvania,  Texas,  and  Louisiana,  the  Legislature 


HISTORY   UV    rilL    LAW   OF   LABOR  29 

may  not  pass  any  local  or  .sjiecial  law  regulating 
labor,  trade,  manufacturing,  mining,  or  agriculture. 
By  the  constitution  of  Wyoming,  the  rights  of 
labor  shall  have  just  protection  through  laws  cal- 
culated to  secure  to  the  laborer  ])roper  rewards 
for  his  services,  and  to  promote  the  industrial 
welfare  of  the  State. 

Political  Privileges  of  Laborers. 

The  political  protection  of  the  laborer  is 
beginning  to  be  seen  to.  Thus,  in  Minnesota, 
employers  are  forbidden  to  require  as  a  condi- 
tion to  employment  the  surrender  of  any  right 
of  citizenship,  or,  in  Wyoming,  to  discharge 
candidates  because  of  their  nomination  for  an  of- 
fice. In  all  the  States  the  laws  provide  for  giving 
time  to  employees  to  vote.  In  New  York  the 
employer  may  not  use  pay  envelopes  upon  which 
is  written  or  printed  any  political  argument,  and 
in  all  the  States  it  is  a  criminal  offence  for  a  person 
to  endeavor  to  influence  a  laborer's  vote  by  threats 
of  discharge  or  lower  wages.  Some  of  the  States 
prohibit  the  employment  of  aliens  upon  public 
works,  and  refuse  to  enforce  contracts  made  for 
alien  labor  in  foreign  countries.  On  the  other 
hand,  the  Grand  Army  of  the  Reiniblic  is  being 
made,  in  many  States,  a  privileged  class,  being  es- 
pecially exempted  from  all  civil-.service  examina- 
tions, or  even  from  other  tests  of  fitness  ;   as  in  the 


30  LABOR  IN  ITS  RELATIONS  TO  LAW 

State  of  Massachusetts,  which  has  just  passed  the 
worst  existing  law  on  this  subject  over  the  veto 
of  its  governor. 

Relief  Funds. 

Some  of  the  States  are  beginning  to  prohibit 
the  institution  by  employers  of  charitable  funds 
or  benevolent  societies,  of  which  tl.e  employee  is 
obliged  to  become  a  member.  The  elaborate  re- 
lief system  of  the  Chicago,  Burlington  &  Quincy 
Railroad,  which  has  been  in  successful  operation 
for  many  years,  and  accumulated  a  relief  fund 
running,  I  think,  to  more  than  a  million  of  dol- 
lars, has  almost  been  nullified  by  a  court  decision 
to  that  effect.  When  we  consider  that  the  great 
desire  of  English  laborers  is  for  insurance  against 
accident  by  the  employer,  it  would  seem  as  if 
this  position  were  rather  extreme,  although,  even 
in  England,  it  is  admitted  that  what  the  employee 
wants  is  protection  from  injury,  not  compensa- 
tion, for  the  reason  that  compensation,  when  fur- 
nished, as  it  ultimately  is,  by  funds  of  this  sort, 
and  still  more  when  furnished  by  outside  insur- 
ance companies,  tends  to  make  the  employer 
careless  both  in  the  choice  of  his  workmen  and 
the  maintenance  of  his  machinery.  In  Tennes- 
see there  is  a  law  aimed  against  company  doc- 
tors. 


HISTORY  OF  THE  LAW  OF  LABOR  31 

Prison  Labor. 

The  tendency  to  prohil)it  all  prison  labor,  or,  at 
least,  all  prison  labor  which  can  possibly  conie 
into  competition  with  outside  labor,  is  familiar  to 
all  of  us.  Mr.  Ruskin,  it  may  be  remembered, 
made  a  cardinal  i)rinciple  of  his  Utopia  that  all 
di.sagreeable,  heavy,  and  dangerous  work  should  be 
done  by  criminals,  and  we  may  think  that  this  is 
another  instance  where  the  zeal  of  the  labor  leader 
has  carried  him  too  far.  The  Southern  States 
very  generally  permit  jjrison  labor  in  important 
public  works,  on  roads  and  canals.  A  condemned 
criminal  is  the  only  modern  instance  of  the  indus- 
trial slave,  and  remembering  that  the  pyramids  of 
Egypt  were  built  by  such  labor,  it  does  not  .seem 
as  if  our  sentimental  altruism  should  carry  us  so 
far  as  to  object  to  the  emijloymcnt  of  our  crimi- 
nals in  healthy  outside  work,  particularly  such  as, 
however  valuable  to  the  State,  will  not  probably 
be  built  l)y  private  enterprise ;  such  work,  for 
instance,  as  the  Cape  Cod  Sliip  Canal. 

Labor  Exempted  from  Trust  Laws. 

But  perhaps  the  most  noteworthy  instance  of 
the  special  privilege  granted  laborers  is  that  of  the 
statute  of  Michigan  passed  in  1889 — a  stringent 
law  against  trusts,  which  specially  excepts  all  con- 
tracts and  combinations  relating  to  the  services  of 
laborers  or  artisans  who  are  formed  into  societies 


32  LABOR  IN  ITS  RELATIONS  TO  LAW 

or  organizations  for  the  benefit  and  protection  of 
their  members.  In  other  words,  you  may  have  a 
trust  in  labor,  or  even,  as  it  seems,  in  the  product 
of  labor,  though  a  necessary  of  life,  provided  only 
it  is  formed  by  the  laborer  himself,  even  under  a 
co-operative  charter,  and  not  by  the  capitalist. 

Factory  Regulation  in  the  United  States. 

Our  factory  legislation  is  not  yet  as  full  and 
complete  as  that  of  England,  though  it  may  be 
observed  that,  owing  to  our  written  constitutions, 
our  Legislatures  are  perhaps  a  degree  more  shy  in 
imposing  regulations  and  restrictions  upon  indi- 
vidual employers.  We  have,  however,  in  the 
North,  laws  for  the  general  inspection  and  regula- 
tion of  factories  against  over-crowding,  for  pro- 
viding good  air,  freeing  mill-rooms  from  dust  or 
noxious  vapors,  requiring  mechanical  fans,  fire- 
escapes,  ventilators,  mechanical  belt-shifters,  com- 
munication by  bells  and  tubes  between  ordinary 
rooms  and  machinery  rooms,  requiring  doors  to 
open  outward,  elevator  shafts  to  be  fenced  in,  and 
so  on  through  an  endless  number.  There  is  one 
statute  alone,  in  the  State  of  Wa.shington,  whicli 
provides  for  the  sobriety  and  capability  of  the  op- 
eratives employed.  Mines  and  railroads  are  also  a 
subject  of  most  elaborate  regulation,  and  in  the  last 
two  years,  I  am  happy  to  say,  a  much  more  neg- 
lected matter  has  been  taken  up — that  of  sweatshops. 


HISTORY  OF  THE   LAW  OF  LABOR  33 

Sweatshops. 

A  sweatshop,  in  legal  parlance,  is  a  workroom 
either  in  one  of  the  ordinary  domestic  rooms  of  a 
house  or  in  a  tenement  not  under  the  control  of 
the  person  furnishing  the  employment.  Here,  of 
course,  we  strike  again  a  constitutional  objection, 
"  that  an  Englishman's  house  is  his  castle  ;  ' '  and  a 
New  York  law  prohibiting,  under  certain  condi- 
tions, the  manufacttn-e  of  cigars  and  confectionery 
in  tenements  has  been  declared  unconstitutional 
by  the  Court  of  Appeals  in  that  State.  New 
York,  New  Jersey,  Massachusetts,  and  Illinois 
have,  however,  passed  statutes  providing  for  the 
regulation  and  inspection  of  tenements  where  in- 
dustrial work  is  done,  and  I  think  we  may  say  that 
there  is  little  doubt  that  such  legislation  will  ulti- 
mately be  sustained  under  the  doctrine  of  the 
police  jurisdiction  of  the  legislature,  though  it  is 
possible  that  the  New  York  statute  went  too  far. 
Intelligence  offices  are  also  beginning  to  be  regu- 
lated by  statute,  and  e\en  the  amount  of  their 
charges  limited.  Generally,  throughout  the  coun- 
try, the  common  law  is  changed  by  which  employ- 
ers were  not  made  liable  for  accidents  resulting 
from  the  negligence  of  a  fellow  emi)loyee  of  the 
person  injured,  .so  that  the  distinct  tendency  is 
toward  making  each  employer  the  insurer  of  all 
his  workmen  against  any  accident  occurring  on  his 
premises,  or  to  a  person  injured  about  his  work. 
3 


34  LABOR  IN  ITS  RELATIONS  TO  LAW 

Knights  of  Labor,  etc. 

Finally  we  may  say  that  there  are  general  stat- 
utes giving  legal  recognition  to  Knights  of  Labor, 
Farmers'  Alliance,  mutual  or  provident  associa- 
tions, workingmen's  aid  societies,  and  labor  or- 
ganizations generally.  In  fact,  the  Legislatures 
have  gone  as  far  as  they  can  in  inviting  workmen 
to  incorporate  themselves  into  legally  recognized 
trades-unions,  and  have  given  them  full  powers 
and  all  reasonable  privilege  in  so  doing.  The 
great  difficulty  has  been,  however,  to  persuade  the 
workmen  to  take  advantage  of  these  laws. 

Union  Labor  not  to  be  Discharged. 

Statutes  are  being  rapidly  passed  which  for- 
bid employers  from  discharging  employees  for 
joining  labor-unions,  or  from  requiring  as  a  con- 
dition of  employment  that  they  should  not  be 
members  of  such  unions,  or  even  from  voluntarily 
awarding  a  preference  in  employment  to  non- 
union men.  I  must  say,  however,  that  I  have  not 
yet  found  any  reported  case  where  the  constitu- 
tionality at  least  of  this  later  prohibition  has  been 
fully  argued  and  clearly  maintained  ;  and  in  one 
State — Missouri — it  has  just  been  denied,  and  the 
law  nullified.  It  is  pretty  clear  that  until  we  get 
into  actual  State  socialism,  the  individual  employer 
must  be  left  free  to  employ  whom  he  will.  In 
other  words,  as  long  as  the  principle  of  labor  em- 


HISTORY  OF  THE   LAW  OF  LABOR  35 

ployment  still  remains  a  voluntary  contract,  it  must 
be  a  contract  and  must  be  voluntary.  Union 
labels,  however,  may  be  protected,  and  all  other 
encouragement  afforded  to  union  men.  There 
were  cases,  some  years  ago,  where  courts  refused 
to  protect  the  label  of  a  trade-imion  on  union- 
made  goods,  for  the  reason  that,  being  employees, 
not  manufacturers,  they  had  no  property  right  in 
the  same  ;  and  in  consequence  of  these  very  cases 
the  States  have  been  rapidly  passing  statutes  al- 
lowing union  labels  to  be  registered  much  as  a 
patent  or  trade-mark  is  registered,  and  granting 
the  same  remedies  for  the  use  of  the  same  by  un- 
authorized parties,  by  injunction  or  suit  for  dam- 
ages. Such  laws  now  exist  in  more  than  half  the 
States. 

Strikes  and  Blacklists. 

Finally,  there  is  quite  a  ma.ss  of  new  legislation 
aimed  generally  either  in  the  direction  of  legaliz- 
ing strikes  and  trade  combinations  or  in  that  of 
prohibiting  combinations  by  employers,  black- 
lists, and  lockouts.  These,  however,  will  be  best 
considered  in  a  lecture  specially  devoted  to  them. 

Arbitration— Collective  Bargaining. 

And  there  are,  as  you  know,  many  important 
steps  already  made  in  our  legislation  in  the  direc- 
tion of  providing  tribunals   for  conciliation   and 


36  LABOR  IN  ITS  RELATIONS  TO  LAW 

arbitration  ;  for  realizing,  in  other  words,  that 
principle  which  I  spoke  of  in  the  beginning  as 
enunciated  by  the  latest  labor  agitations  in  Eng- 
land, that  the  relation  of  employer  and  employee 
should  cease  to  be  that  of  individual  and  contract, 
but  rather  of  the  nature,  if  not  of  trade-partnership, 
at  least  of  "  collective  bargaining"  on  both  sides 
— a  principle  which  will  r.ccessarily  bring  in  an 
entirely  new  body  of  legal  remedies  for  actions 
which  contravene  this  modern  notion  of  the  soli- 
darity of  labor  interests. 

I  think  it  will  be  admitted  that  our  American 
democracies  have  already  not  shown  themselves 
deaf  to  the  demands  and  complaints  of  the  indus- 
trial laborer.  Certainly  they  have  gone  very  far 
in  the  direction  of  removing  abuse  and  of  limiting 
and  regulating  the  employer  in  the  management 
of  his  business.  All  this  may,  however,  be  called 
negative  achievement.  I  wish  it  were  not  possi- 
ble, as  it  is,  to  close  this  summary  view  of  the 
present  state  of  things  by  stating  in  so  few  words 
the  sum  of  positive  achievement  in  the  direction 
either  of  improving  the  character  and  efficiency  of 
the  laborer  or  of  furnishing  new  fields  for  the 
unemjjloyed  ;  but  when  we  say  that  our  laws  of 
api)renticeship  have  become  a  dead  letter,  and 
that  provision  is  made  in  some  half-dozen  States 
for  industrial  training  or  the  teaching  of  manual 
arts  in  the  public  schools,  and,  in  New  York,  for 


HISTORY  OF  THE  LAW  OF  LABOR  37 

free  lectures  to  working  people  on  actual  science 
in  the  evenings,  we  have  said  about  all  I  have 
gleaned  from  my  reading  the  statutes. 

The  Massachusetts    Commission-on-Unemployed    Bill 
for  Labor  Colony. 

The  Massachusetts  Commission  on  the  Unem- 
ployed presented  in  their  report  this  year  an  elabor- 
ate bill  for  the  establishment  of  a  labor  test  to  dis- 
criminate ordinary  vagrants  from  persons  out  of 
work,  and  for  the  establishment  of  a  labor  colony,  to 
which  the  latter  might  be  committed  voluntarily  or 
by  order  of  court,  if  the  occasion  justified.  The 
notion  of  the  labor  colony  was  of  an  institution  not 
punitory  or  penal  so  that  commitment  to  it  would 
be  attended  with  any  disgrace,  but  which,  having 
a  large  tract  of  unimproved  land,  should  develop 
it  agriculturally  and  industrially,  and  in  so  doing 
give  any  men  out  of  work,  who  might  otherwise  be 
in  danger  of  becoming  tramps  or  criminals,  such 
training  in  ordinary  farming  and  the  common  in- 
dustrial trades  as  would  enable  them  upon  their 
discharge  to  seek  skilled  work  with  good  prob- 
ability of  obtaining  it.  This  bill  will  not  be  acted 
upon  by  the  Legislature  until  next  year,  if  it  will  at 
all.  It  will  be  interesting  to  see  whether  it  meets 
with  opposition  or  help  from  the  societies  of  or- 
ganized labor. 


38  LABOR  IN   ITS  RELATIONS  TO  LAW 

Tendency  of  Legislation  and  Courts  Favorable  to  Labor. 

It  has  been  necessary  to  cover  a  large  field  in 
this  lecture  to  give  even  an  outline  sketch  of  the 
history  of  English  labor  questions,  as  treated  by 
Legislatures  and  the  law  up  to  date.  We  are  now 
prepared  to  take  up  the  more  concrete  subjects 
which  are  pressing  for  immediate  solution,  but  I 
think  we  must  admit  after  making  this  review 
that  the  industrial  laborer  to-day  has  succeeded  in 
getting  the  ear  of  the  public  and  of  the  Legisla- 
tures. He  has  a  common  and  regrettable  notion 
that  the  courts  are  against  him.  It  is  true  that 
timid  judges  have  sometimes  flown  to  the  Consti- 
tution, much  as  a  child  runs  to  its  mother,  and 
that  angry  judges  have  invoked  the  aid  of  armed 
deputies  in  enforcing  equity  processes,  which  other- 
wise would  have  been  of  no  effect ;  but  in  many 
cases  the  occasion  justified  it,  and,  at  all  events, 
the  Legislatures  have  not  been  slow  to  help  the 
cause  of  labor.  While  asking  the  earnest  attention 
and  sympathy  of  all  thoughtful  men,  the  industrial 
laborer  must  not  be  led  to  believe  that  he  belongs 
to  a  privileged  class,  and  certainly  the  statutes 
recently  passed  have  gone  far  to  justify  such  an 
impression  in  his  mind.  No  other  American 
citizen  has  his  contracts  regulated  by  the  State, 
his  times  of  payment  fixed,  his  liberty  to  break 
them  secured  by  law,  his  property  freed  from  judg- 
ment, while  upon  the  property  of  his  debtors  he 


HISTORY  OF  THE  LAW  OF  LABOR  39 

is  given  a  prior  lien.  In  no  other  occupation 
than  that  of  personal  labor  is  a  man  left  free  to 
perform  his  own  contracts  or  not,  while  the  other 
side  is  held  to  them.  No  other  class  have  their 
prosperity  made  specially  the  subject  of  legislative 
consideration,  and  their  political  power  carefully 
guarded  by  express  statute,  and  every  opportunity 
given  for  its  use.  When  he  has  a  just  grievance 
the  public  bears  good-naturedly  the  inconvenience 
caused  even  by  the  most  sudden  and  arbitrary 
action  on  his  part.  Let  us  recognize  then  that 
however  evil  were  the  conditions  in  the  past,  the 
law  has  done  much  for  the  laboring  man  to-day 
and  is  ready,  backed  by  pul)lic  sentiment,  to  do 
more,  provided  only  that  what  he  asks  is  limited 
to  that  which  is  reasonable,  possible,  and  not  in- 
consistent with  our  inherited  liberties. 


II 

THE  EMPLOYMENT  CONTRACT 

Two    Public    Questions   Concerning  Labor  Prominent 
To-day. 

Our  last  lecture  attempted  to  give  a  bird's-eye 
view  of  the  general  subject  of  labor  in  its  relation 
to  law,  sufficient  to  enable  ik  now  to  pick  out 
what  are  the  important  points,  the  key-positions, 
in  the  country  we  have  surveyed  ;  and  I  may  say 
at  once  that  they  appear  to  be  two  in  number: 
First,  the  general  question  of  the  labor  contract, 
and  how  far  the  law  shall  restrain,  modify,  or 
amend  it ;  second,  the  question  of  the  acts  and 
remedies  permissible  both  to  employers  and  em- 
ployees in  their  effort  to  better  their  position  rela- 
tive to  each  other,  and  how  far  the  State  shall 
restrain,  sanction,  or  enforce  these. 

The  Labor  Contract,  its  History. 

I  think  to-day  it  will  be  quite  enough  if  we 
endeavor  to  consider  the  labor  contract.  Now, 
first  I  wish  to  call  your  attention  to  the  fact  that 
it  is  now  generally  admitted  by  radicals  as  well  as 


THE  EMPLOYMENT  CONTRACT      41 

conservatives,  that  the  great  story  of  the  historical 
development  of  the  labor  question  has  been  that 
from  artificial  control  to  freedom  of  contract.  I 
do  not  wish  to  prejudice  you  Vith  any  notion  that 
this  freedom  of  contract  is  now,  or  in  the  future, 
necessarily,  a  thing  to  be  preserved  ;  but  it  is 
necessary  for  us  to  note  this  great  historical  fact. 

State  Control  Asked. 

Many  labor  leaders  are  again  asking  for  an  effec- 
tual control  of  the  labor  contract  or  relation,  and 
this  not  only  as  it  was  controlled  in  old  times  in 
the  interest  of  the  laborer,  by  the  guilds,  that  is, 
not  now  by  trades-unions  or  combined  action 
alone,  but  by  the  direct  legislation  of  the  State. 
That  is,  they  wish  to  substitute  the  will  of  a  pre- 
sumable majority,  or  at  least  of  a  majority  of 
those  i)ersons  who  for  any  year  happen  to  be 
members  of  the  State  legislature,  for  the  individ- 
ual judgment  of  the  citizen.  They  wish  to  pro- 
hibit the  right  of  the  employee  to  make  his  own 
contract  with  the  employer,  and  this  not  alone 
separately,  but  as  applied  to  what  we  have  called 
collective  bargaining;  that  is,  even  to  the  con- 
tracts of  all  employers  in  a  given  trade  with  all 
the  employees  in  such  trade  embodied  in  a  labor 
union.  I  repeat  that  I  do  not  now  wish  to  con- 
sider whether  this  is  wise  or  not,  whether  it  is 
beneficial  to  the  employee  or  not,  whether  on  the 


42  LABOR  IN  ITS  RELATIONS  TO  LAW 

whole  it  is  for  the  greatest  good  of  the  greatest 
number  or  not ;  but  I  do  wish  strongly  to  point 
out  that  this  is  a  distinct  change  of  sides  and  a 
surrender  of  the  ground  for  which  labor  had  been 
fighting  from  the  earliest  historic  times  down  to 
a  very  few  years  ago.  On  this  fact  every  one  is 
agreed.  It  is  as  clearly  set  forth  in  the  compila- 
tion of  labor  history  made  under  the  auspices  of 
Mr.  Powderly  as  it  is  in  Adam  Smith,  as  clearly  in 
the  history  of  Brentano  of  Leipsic — who  represents 
the  later  German  school,  which  objects  to  Adam 
Smith  and  the  laissez-faire  idea — as  in  Thorold 
Rogers.  Brentano  is  most  emphatic  on  this  point, 
and  his  phrase  for  it  is,  "  the  growth  of  labor  from 
the  system  of  authority  to  the  system  of  contract.''' 
Brentano  himself  is  for  the  yet  newer  view, 
which  he  terms  ' '  association  ;  ' '  but  the  history 
of  his  own  subject,  as  told  by  himself  up  to  the 
date  of  his  book,  is  simply  the  history  of  the  suc- 
cessful effort  of  labor  to  be  relieved  of  compulsion 
by  law  or  by  guild,  and  its  arrival  at  the  stage 
known  to  us  in  the  nineteenth  century,  where — 
to  quote  Brentano' s  words — "labor  is  regarded  as 
a  commodity  to  be  sold,  and  the  greatest  possible 
liberty,  both  of  individual  bargaining  and  of 
combination,  is  given  to  the  laborer  in  selling  it." 
On  August  4,  1789,  as  Brentano  tells  us,  the 
abolition  of  the  old  guild  control  in  France  was 
welcomed  by  laborers  with  the  wildest  rejoicings 


THE  EMPLOYMENT  CONTRACT      43 

of  the  French  Revohition,  and  "  the  glorious  night 
of  this  4th  of  August,  under  the  shouts  of  ap- 
proval of  the  nation,  made  good  the  demands  of 
the  laboring  classes  for  the  freedom  of  individuals 
as  against  absolutism,  and  for  the  abstinence  from 
every  positive  encroachment  upon  the  economic 
life  of  a  positive  economic  legislation." 

Turning  again  to  England,  the  triumph  is  there 
further  accentuated  as  the  crowning  principle  of 
the  Anglo-Saxoiv  Constitution.  I  say  Anglo- 
Saxon,  because  as  both  Blackstone  and  Benjamin 
Franklin  have  pointed  out,  it  was  this  Constitution 
that  we  brought  with  us  into  this  country  as  our 
most  priceless  heritage ;  and  Bushrod  Washing- 
ton, one  of  our  first  great  judges,  as.serted,  that 
this,  with  other  unwritten  constitutional  princi- 
ples, was  so  deep  and  so  sacred  as  not  to  be  preju- 
diced even  by  its  omission  from  the  written 
constitutions  which  our  States  and  our  national 
government  had  at  that  time  adopted.  Therefore, 
in  England,  and  still  more  in  America — for  here, 
by  the  framework  of  our  government,  our  legis- 
latures do  not  have  the  power  of  the  British  par- 
liament— this  is  not  only  a  hard-won  principle  of 
the  relations  of  laborer  to  employer,  but  a  funda- 
mental principle  of  the  relation  of  the  freeman  to 
the  government.  You  will  see,  therefore,  that 
wliile  we  still  say  nothing  as  to  the  expediency  of 
starting  again  on  the  old  Elizabethan  method  of 


44  LABOR  IN  ITS  RELATIONS  TO  LAW 

regulating  the  labor  contract  by  statute — only  now 
avowedly  in  the  interest  of  labor,  while  then  it 
was  virtually  in  the  interest  of  capital — we  do 
say  a  great  deal  upon  the  constitutionality  and  the 
novelty  in  our  country  and  in  our  race  of  starting 
on  this  course. 

Meaning  of  the  Constitution. 

Now  I  am  very  well  aware  of  the  savor  of  dry- 
ness and  musty  precedent  which  in  every  mind 
not  a  lawyer's  hangs  about  the  phrase  "  constitu- 
tionality or  unconstitutionality."  It  is  within  a 
very  few  months  that  a  friend  with  whom  I  was 
engaged  in  drafting  some  legislation  in  the  inter- 
est of  labor,  a  learned  professor  and  a  publicist  as 
well,  used  the  phrase,  "  but  bother  the  Constitu- 
tion !  "  more  than  half-a-dozen  times  in  connec- 
tion with  one  brief  statute  that  we  were  trying 
to  draw.  He  said  "  every  time  you  try  to  do 
something  for  labor  or  humanity  you  run  up 
against  the  Constitution."  Nevertheless,  I  would 
beg  all  people  who  are  considering  this  question 
in  the  interest  of  labor  ;  in  the  interest  of  human- 
ity; at  least,  in  the  interest  of  a  free  humanity,  to 
get  a  full  understanding  of  what  this  dry  phrase, 
"unconstitutional,"  may  really  mean.  There  is 
a  notion  lately  prevalent,  particularly  among  cer- 
tain newspapers  and  a  minor  order  of  politicians, 
that  the  will  of  the  majority  is  in  all  things  para- 


THE  EMPLOYMENT  CONTRACT      45 

mount ;  that  the  object  of  a  free  government  is 
simply  to  ascertain,  register,  and  enforce  the  will 
of  any  majority  at  any  time.  Now,  we  must  most 
earnestly  deny  this;  deny  it  to  the  length  of  say- 
ing that  such  a  government,  far  from  being  a  free 
government,  would  only  differ  from  a  mob  gov- 
ernment in  a  certain  jjossible  avoidance  of  blows 
and  bloodshed ;  and  we  would  go  so  far  as  to  as- 
sert the  paradoxical  opposite,  namely,  that  the 
object  of  all  free  government,  certainly  of  all  con- 
stitutional free  government,  is  not  to  enforce  the 
will  of  the  majority,  but  to  protect  the  liber- 
ties of  the  minority  ;  the  majority,  except  in  a 
tyranny,  enforce  their  will  fost  enough  under  any 
government — with  their  fists  without  a  govern- 
ment. Such  is  the  object  of  a  constitution  ;  and 
that  is  what  the  phrase  "constitutional"  may 
mean.  There  is  one  greater  interest  than  even 
labor  or  property ;  a  higher  idea  than  daily  meat 
and  bread,  and  that  is,  freedom  ;  and  the  seem- 
ingly dry  phrase  "  unconstitutional  "  can  in  most 
cases  be  translated  into  a  synonym  more  easy  of 
comprehension  to  all  Americans,  and  that  is, 
"  destructive  of  liberty." 

"  We  live  in  a  world  of  ideas,"  and  if  through 
the  Hebrew  race  came  a  greater  idea  still,  no  one 
will  contest  that  through  our  race  has  come  the 
idea,  liberty.  Since  the  time  of  King  John  we 
have  been  fighting  for  this,  and  we  have  got  it  j 


46  LABOR  IN   ITS  RELATIONS  TO  LAW 

and  this  liberty  includes,  even  by  the  dry  intend- 
ment of  law,  the  right  of  a  man,  first,  to  be  free 
in  his  person  ;  second,  the  right  to  be  free  in  his 
thoughts ;  and  third,  the  right  to  be  free  in  his 
actions.  I  have  stated  this  somewhat  in  the  order 
of  its  historical  accomplishment.  As  we  all  know, 
first  an  Englishman's  body  became  free ;  then 
came  religious  liberty,  and  last  of  all,  and  pecu- 
liarly through  the  labor  question,  his  freedom  to 
work  or  not  to  work ;  his  freedom  to  work  for 
whom  he  would,  and  when  and  at  what,  and  for 
what  pay  he  would. 

Personal  Liberty  Includes  Property. 

But  one  thing  remains  to  be  added  to  this  be- 
.  fore  we  can  come  to  a  concrete  treatment  of  our 
subject,  and  that  is,  that  it  very  soon  and  very 
early  became  a  part  of  a  man's  personal  liberty 
that  he  could  acquire,  possess,  and  freely  enjoy 
material  possessions.  Now,  again,  I  am  not  tak- 
ing "here  an  ethical  ground  in  defence.  For  the 
moment,  I  am  not  defending  the  question  of  pri- 
vate property  at  all ;  but  I  am  merely  pointing 
out  that  as  a  man's  freedom  of  person  only  would 
be  like  that  of  the  beast  of  the  field,  without  a 
roof  to  creep  to  at  night  and  protect  his  wife  and 
children,  and  a  store  of  food  and  fuel  to  feed  and 
warm  them  with  until  he  could  acquire  the  next 
supply,  this  institution  of  property  was  at  once  the 


THE  EMPLOYMENT  CONTRACT      47 

necessary  instrument,  as  it  were,  of  personal  free- 
dom itself.  It  is  perfectly  possible,  of  course,  that 
these  things  can  be  provided  by  the  State ;  but 
property — appropriation  by  somebody  to  each  per- 
son of  certain  commodities — is  a  necessary  part  of 
the  liberty  of  a  human  being.  The  maxim,  that 
an  "  Englishman's  house  is  his  castle,"  is  but  one 
expression  of  this  truth.  Now  we  are  still  living 
under  the  institution  of  private,  as  distinguished 
from  common,  property,  and  private  property  is 
expressly  made  a  corner-stone  of  every  one  of  our 
State  constitutions  and  of  that  of  the  National 
government  itself.  And,  in  theory,  all  constitu- 
tional liberties  are  equally  important,  for  the  rea- 
son that  if  you  can  destroy  one,  even  though  by  a 
law,  you  can  destroy  them  all.  This  is  why  I  say 
that  the  object  of  a  constitutional  government  is 
to  protect  minorities;  that  is,  to  protect  a  minor- 
ity, or  even  a  single  individual,  in  the  enjoyment 
of  any  con.stitutional  thing  it  was  specified  by  his 
forefathers  he  should  have  when  they  entered  into 
the  compact  which  makes  him  a  member  of  the 
government.  Thus,  while  democratic  government 
has,  as  one  function,  the  registering  of  the  will  of 
the  majority,  constitutional  government  has  as 
its  special  function  the  seeing  to  it  that  the  major- 
ity does  not  transcend  certain  cardinal  principles 
of  freedom  or  policy  which  were  specially  ex- 
cepted out  of  its  powers  by  the  will  of  the  jxjople 


48  LABOR  IN  ITS  RELATIONS  TO  LAW 

itself.  Should  the  will  of  the  people  be  really 
and  permanently  changed  by  such  a  decided  ma- 
jority as  to  guarantee  that  the  change  will  be  per- 
manent and  not  a  mere  chance  vote  in  a  moment 
of  excitement,  the  Constitution  itself  provides  a 
method  for  registering  such  change.  Therefore 
we  approach  this  subject  with  the  most  distinct 
statement  that  the  freedom  of  the  individual,  and 
freedom  in  dealing  with  his  po.ssessions,  of  which 
his  own  right  to  labor  is  as  much  one  as  his  horse 
or  his  cow,  is  our  greatest  birthright,  and  one 
which  has  received  the  sanction  of  what  is  called 
the  Constitution. 

Now,  in  considering  these  labor  questions,  par- 
ticularly in  their  relation  to  this  principle,  there 
are  always  two  questions  to  be  determined.  First, 
is  it  expedient  to  do  this  thing  by  a  law  ?  sec- 
ond, is  it  constitutional  ?  If  both,  there  can  be 
no  question  ;  but  if  expedient,  and  not  constitu- 
tional, the  clear  answer  we  should  give  is  that  it 
should  then  be  brought  about  by  voluntary  ac- 
tion, by  united  demand,  by  public  sentiment,  so 
that  we  may  get  the  benefit  of  the  change  pro- 
posed without  paying  for  it  the  dear  price  of  los- 
ing, once  and  for  all,  all  our  constitutional  liber- 
ties. I  wish  to  make  it  clear  that  I  believe  our 
phrase,  "constitutional,"  to  embody  one  of  the 
very  highest  ethical  principles  ;  certainly  so  in 
relation  to  our  people  and  our  race.     I  deny  most 


THE  EMPLOYMENT  CONTRACT      49 

strenuously  that  it  is  a  dry  phrase  or  a  legal  fig- 
ment. I  say  that  whenever  the  word  "  constitu- 
tional "  can  fairly  come  in,  we  are  treating  with 
the  deepest  principles  and  the  most  ethical  mo- 
tives. And  one  word  more  before  we  go  into 
practical  affairs.  The  difficulty  in  this  question 
is  based  almost  entirely  on  another  and  a  peculiar 
l)oint.  There  is,  of  course,  the  general  difficulty 
that  a  concise  expression  of  great  human  import 
necessarily  cannot  define  its  application  ;  when, 
for  instance,  we  say  that  a  man's  property  cannot 
be  taken  away  without  due  process  of  law,  there 
is  at  once  the  question  whether  the  proi)erty  of  a 
man  in  his  own  labor  comes  under  the  general 
expression  of  property. 

Written  or  Unwritten  Constitution. 

But  I  mean  fiirther  than  this.  The  constitution 
of  England  is  avowedly  unwritten,  and  if  Webster 
and  Judge  Wa.shington — who  rendered  almost  the 
first  decision  on  the  subject — were  right,  we  have 
not  lost  it  by  adopting  our  written  constitutions. 
If,  on  the  other  hand,  the  view  is  correct  that 
more  recently  has  been  expressed  by  the  Supreme 
Court  of  Massachusetts,  that  we  have  no  un- 
written or  implied  constitution,  but  that  each 
man  is  protected  and  restrained  only  (i)  by 
the  exact  words  of  his  own  State  constitution, 
and  (2)  by  the  express  i)rovisions  of  the  United 
4 


50  LABOR  IN  ITS  RELATIONS  TO  LAW 

States  Constitution,  the  uncertainty  is  still  not 
quite  removed,  because  there  can  hardly  be  a 
doubt  that  the  concise  expressions  and  general 
phrases  employed  in  our  brief  State  and  National 
Constitution  were  written  with  conscious  reference 
to  all  that  body  of  unwritten  constitutional  law 
which  they  had  brought  with  them  from  England 
and  under  which  our  citizens  then  lived  ;  and, 
therefore,  the  expressed  restrictions  and  guaran- 
tees of  our  written  Constitution,  wherever  the 
phrase  fairly  permits  it  or  indicates  it,  are  to  be 
extended  to  include  by  implication  the  whole 
body  of  constitutional  law  which  then  fell  natu- 
rally into  the  same  subject  matter.  This  is  the 
sole  cause  of  the  apparent  diversity  of  our  courts 
on  constitutional  mattei's.  There  is  never  any 
doubt  when  a  law  or  an  act  in  question  falls 
under  the  express  written  phrases ;  but  when 
the  express  written  phrase  is  a  general  one,  the 
question  is  w^hether  it  includes  the  particular. 
Whether  the  right  to  property  includes  property 
in  a  man's  own  labor  is  precisely  an  example  of 
what  I  mean  ;  and  examples  of  cases  which, 
though  clearly  constitutional  principles,  are  not 
embodied  in  our  written  Constitution,  are  not  hard 
to  find.  Parliament  in  England  is  said  to  be 
supreme,  but  there  is  a  very  early  case,  w^hich  has 
been  referred  to  in  a  thousand  cases  since,  to  the 
effect  that  even  Parliament  cannot  make  a  man  a 


THE  EMPLOYMENT  CONTRACT      51 

judge  in  his  own  case ;  so  even  Parliament  cannot 
arbitrarily  take  the  property  of  one  man  and  give 
it  to  another.  Now,  I  will  say  frankly  that  1  have 
very  great  doubt  whether  the  omission  of  our 
State  or  National  Constitution  to  express  such 
principles  as  this  has  taken  them  out  of  our  birth- 
right as  Anglo-American  freemen. 

So  in  the  case  of  monopolies.  In  the  leading 
case  on  this  question,  that  of  the  Norwich  Gas 
Light  Company,  arising  in  Connecticut  in  the  year 
1856,  the  court  expressly  says  that  "  although  we 
have  no  direct  constitutional  provision  against  a 
monopoly,  yet  the  whole  theory  of  a  free  govern- 
ment is  opposed  to  such  grants,  and  it  does  not 
require  even  the  aid  which  may  be  derived  from  the 
Bill  of  Rights,  providing  that  no  man  or  set  of  men 
are  entitled  to  exclusive  public  emoluments  or  priv- 
ileges from  the  community,  to  render  them  void." 

Present  Entire  Freedom  of  Labor  Contract. 

Coming  now  to  a  practical  consideration  of  the 
labor  contract,  I  hope  I  have  shown  that  we 
start  upon  a  simple  and  intelligible  proposition 
that  to-day  the  labor  contract  is  perfectly  free  ; 
either  side  may  make  whatever  contract  he  can 
get  the  other  side  to  sign.  Not  only  this,  but 
either  side  may  freely  combine  to  demand  any  form 
of  contract  from  the  other  side,  as  mere  com- 
binations alone   are   now   made   perfectly    legal. 


52  LABOR  IN  ITS  RELATIONS  TO  LAW 

This  is  the  condition  of  affairs  we  now  are  in,  and 
this  is  the  condition  of  affairs  for  which  laborers 
have  always  for  five  hundred  years  contended  for. 
It  has  been  so  fully  and  completely  realized  that 
it  hardly  appears  in  any  of  our  laws  or  constitu- 
tions ;  for,  subject  only  to  certain  laws  against 
combinations,  against  collective  bargaining,  which 
will  be  peculiarly  the  subject  of  my  next  lecture, 
this  state  of  affairs  had  practically  come  about  be- 
fore the  adoption  of  our  written  constitutions. 
The  men  who  formed  our  constitutions  thought 
it  no  more  necessary  to  provide  that  a  man  might 
make  a  legal  contract  about  his  own  labor  than 
they  did  about  his  property,  and  no  more  neces- 
sary to  say  it  about  both  than  they  did  to  say,  in 
terms,  that  there  should  be  no  taxation  without 
representation.  Only  in  view  of  late  attempts  to 
interfere  with  this  contract  have  certain  States 
very  recently  affirmed  the  principle.  Thus,  the 
statute  of  Louisiana  of  1890  provides  that  the 
violation  of  labor  contracts  and  wilful  interfer- 
ence with  such  contracts  by  persons  not  parties 
thereto  is  forbidden.  You  will  note  that  this 
important  statute  falls  into  two  branches — one 
which  asserts  the  legality  of  labor  contracts  spe- 
cially and  forbids  their  violation,  and  one  which 
forbids  wilful  interference  with  such  contracts  by 
persons  not  parties  to  them  ;  that  is,  intimidation. 
The  first  branch  alone  concerns  the  contract  itself. 


THE  EMPLOYMENT  CONTRACT      53 

The  California  code  says  that  the  contract  of  em- 
ployment is  a  contract  by  which  one,  who  is 
called  the  employer,  engages  another,  who  is  called 
the  employee,  to  do  something  for  the  benefit  of 
another  or  a  third  person.  You  will  observe  that 
this  is  mere  definition.  The  statute  clearly  does 
not  consider  it  necessary  to  say  in  terms  that  such 
a  contract  is  legal.  Of  course  it  is.  Now,  this 
fact  that  only  one  State — and  that  by  a  most  re- 
cent statute — says  anything  about  the  general 
question  of  the  labor  contract,  is  the  very  lact 
which  shows  how  completely  such  a  contract  had 
become,  not  only  legal,  but  guaranteed  by  the 
Constitution.  It  did  not  re(piire  the  support  of 
any  statute.  The  Louisiana  statute  was  doubt- 
less passed  by  the  Legislature  in  a  moment  of  ap- 
prehension about  first  principles,  caused  by  the 
general  strike  and  disorder  of  the  city  of  New 
Orleans  in  1889.  The  California  statute  is  not  so 
significant,  because  it  is  merely  a  part  of  Mr. 
David  Dudley  Field's  code,  and  Mr.  Field  put 
everything  in  his  code,  almost  to  the  alphabet  and 
the  tables  of  arithmetic.  Our  law-making,  there- 
fore, bears  out  my  statement  that  the  right  of 
contract  in  labor  matters  is  recognized  in  this 
country  as  needing  not  the  sanction  of  any  stat- 
ute. If  it  be  not  involved  in  our  written  con- 
stitutions, it  is,  at  least,  a  part  of  that  unwritten 
constitutional  law  of  which    I   just  spoke.      From 


54  LABOR  IN  ITS  RELATIONS  TO  LAW 

the  point  of  view  of  history,  of  law,  and  of  ethics, 
this  general  principle  is  clearly  right.  The  con- 
tract of  labor  should  be  free  to  both  sides. 

Thus,  in  People  v.  Gillson  (109  N.  Y.,  339),  the 
court  says  :  The  term  ' '  liberty  ' '  as  used  in  the 
Constitution  is  not  dwarfed  into  mere  freedom 
from  physical  restraint  of  the  person  of  the  citizen, 
as  by  incarceration,  but  is  deemed  to  embrace  the 
right  of  man  to  be  free  in  the  enjoyment  of  the 
faculties  with  which  he  has  been  endowed  by  his 
Creator,  subject  only  to  such  restraints  as  are 
necessary  for  the  common  welfare.  Liberty,  in 
its  broad  sense,  as  understood  in  this  country, 
means  the  right  not  only  of  freedom  from  servi- 
tude, imprisonment,  or  restraint,  but  the  right  of 
one  to  use  his  faculties  in  all  lawful  ways  ;  to  live 
and  work  where  he  will ;  to  earn  his  livelihood  in 
any  lawful  calling,  and  to  pursue  any  lawful  trade 
or  avocation. 

In  Braceville  Coal  Company  v.  The  People 
(147  111.,  71),  the  court  says  : 

"  Property,  in  its  broader  sense,  is  not  the 
physical  thing  which  may  be  the  subject  of  owner- 
ship, but  is  the  right  of  dominion,  possession,  and 
power  of  disposition  which  may  be  acquired  over 
it ;  and  the  right  of  property,  preserved  by  the 
Constitution,  is  the  right  not  only  to  possess  and 
enjoy  it,  but  also  to  acquire  it  in  any  lawful  mode, 
or  by  following  any  lawful  industrial  pursuit  which 


THE  EMPLOYMENT  CONTRACT      55 

the  citizen,  in  the  exercise  of  the  Hberty  guaran- 
teed, may  choose  to  acloi)t.  Labor  is  the  pri- 
mary foundation  of  all  wealth.  The  property 
which  each  one  has  in  his  own  labor  is  the  com- 
mon heritage,  and,  as  an  incident  to  the  right  to 
acquire  other  property,  the  liberty  to  enter  into 
contracts  by  which  labor  may  be  employed  in 
such  way  as  the  laborer  shall  deem  most  beneficial, 
and  of  others  to  employ  such  labor,  is  necessarily 
included  in  the  constitutional  guaranty."  In  the 
Frorer  case  we  said  :  "  The  privilege  of  contract- 
ing is  both  a  liberty  and  a  property  right,  and  if 
A  is  denied  the  right  to  contract  and  acquire 
property  in  the  manner  which  he  has  hitherto  en- 
joyed under  the  law,  and  which  B,  C,  and  D  are 
still  allowed  by  the  law  to  enjoy,  it  is  clear  that  he 
is  deprived  of  both  liberty  and  proj^erty  to  the  ex- 
tent that  he  is  thus  denied  the  right  to  contract, 
and  quoted  with  ap[)roval  :  '  The  man  or  the 
class  forbidden  the  acquisition  or  enjoyment  of 
property  in  the  manner  permitted  the  community 
at  large,  would  be  deprived  of  liberty  in  particu- 
lars of  primary  importance  to  his  or  their  pursuit 
of  happiness.'  "      {Coohy's  Const.  Lii/i.,  393.) 

Intimidation. 

As  a  direct  corollary  to  this,  the  other  branch  of 
the  Louisiana  statute  should  also  go  without  saying, 
as  the  law  is  thus  in  all  our  States.     The  contract 


56  LABOR  IN  ITS  RELATIONS  TO  LAW 

being  free  to  the  parties,  no  third  person  should 
interfere  with  them,  at  least  by  any  other  influence 
than  persuasion.  This,  I  think,  we  will  also  take 
as  axiomatic.  But,  unhappily,  laborers,  often 
uninstructed,  and  suffering  perhaps  under  past 
oppression  or  present  unfair  treatment,  have  so 
often  broken  this  principle,  that  here  we  find  that 
States  have  found  it  necessary  to  legislate  ;  and  so 
every  New  England  State,  New  York,  Indiana, 
Illinois,  Wisconsin,  Minnesota,  Missouri,  Oregon, 
the  Dakotas,  Montana,  Georgia,  Alabama,  and 
Texas,  have  thought  proper  to  legislate  that  it 
shall  be  a  criminal  offence  for  any  person  to  pre- 
vent, or  to  seek  to  prevent,  by  means  of  threats, 
intimidation,  or  force,  alone  or  in  combination 
with  others,  any  person  from  entering  into  or  con- 
tinuing in  the  employment  of  any  other  person. 
Illinois,  Oregon,  the  Dakotas,  Montana,  and 
Georgia  have  also  extended  this  principle  to  the 
employer  ;  that  is,  it  is  criminal  to  intimidate  or 
coerce  any  employer  not  to  employ  any  other 
person  whom  he  might  otherwise  be  willing  to 
employ.  The  other  States  have  probably  not 
covered  the  point  because  they  did  not  deem  the 
employer  likely  to  be  intimated  in  so  doing. 

"  Molesting." 

I  will  here  ])ause  to   note   that  in  England  the 
same    legislation    has    run    its   course,    and    the 


THE  EMPLOYMENT  CONTRACT      57 

phrase  in  their  present  statute  now  is,  '•  anyone 
who  uses  violence  to,  or  intimidates,  such  per- 
son ;  "  and  it  is  very  significant  tliat  the  majority 
of  the  Labor  Commission  of  1893  recommend  an 
amendment  to  this  wording,  which  is  found  in  a 
statute  of  1875,  to  read  to  follows  :  "  any  person 
who  uses  or  threatens  to  use  violence  to  such  otlier 
person."  You  see  that  there  is  a  most  imi)ortant 
distinction  here.  The  word  "intimidate"  may 
well  cover  moral  intimidation.  The  labor  leaders 
are  now  contending  to  be  permitted  this,  and  to 
limit  the  prohibition  to  violence  or  the  threat  of 
violence;  that  is,  physical  violence  alone.  I 
presume,  however,  this  physical  violence  would 
apply  to  destruction  of  property  as  well  as  injury 
to  person.  This  is  a  very  significant  change,  be- 
cause it  has  ari.sen  out  of  the  great  strikes  in  Eng- 
land and  the  law  cases  to  which  they  gave  rise.  I 
shall  have  to  go  into  this  matter  in  some  detail 
when  we  speak  of  boycotts,  merely  noting  here  that 
one  of  our  leading  decisions  in  the  State  of  New 
York  recognizes  that  there  may  be  a  moral  intimi- 
dation— ridicule,  for  instance,  or  disorderly  shout- 
ing, or  objectionable  epithets — which  will  be  crim- 
inal, even  when  practised  by  one  person  alone. 
In  a  boycott,  which  is  necessarily  the  act  of  more 
than  one  person,  the  law  is  much  stricter. 

New  York,   Minnesota,   Georgia,  and  Montana 
have   been  a  shade  more  specific,  and  exprcs.sed 


58  LABOR  IN  ITS  RELATIONS  TO  LAW 

that    this    intimidation  shall  not  be  either  by  in- 
terfering with  tools  or  property  or  the  use  thereof. 

But  we  have  not  yet  got  to  the  end  of  this  in- 
teresting legislation.  In  Connecticut,  New  York, 
and  Montana  the  prohibition  of  the  statute  ex- 
tends to  the  preventing,  by  threats  or  force,  any 
person  from  doing  or  not  doing  any  act  which 
such  person  has  a  legal  right  to  do.  Here,  you 
will  see,  you  have  the  broad  human  principle  laid 
down,  that  I  have  a  right  as  an  individual  to  do 
an  act  not  otherwise  unlawful,  and  any  other  per- 
son shall  be  regarded  as  a  criminal  who  attempts 
to  prevent  me.  It  sounds  almost  like  a  passage 
from  Herbert  Spencer  ;  but  who,  after  this,  can 
say  there  are  no  ethics  in  the  law  world  ? 

Oregon  and  North  Dakota,  following  the  last 
English  statute,  specify  more  particularly  against 
the  compelling  another  "  to  alter  his  mode  of 
carrying  on  business,  or  to  limit  or  increase 
the  number  of  persons  employed  by  him,  or 
their  rate  of  wages  or  term  of  service."  Mich- 
igan has  a  similar  statute,  and,  finally,  the  brand- 
new  constitution  of  North  Dakota  embodies  this 
corner-stone  as  follows:  "Every  citizen  of  this 
State  shall  be  free  to  obtain  employment  wher- 
ever possible,  and  every  person  maliciously  inter- 
fering or  hindering  in  any  way  any  citizen  from 
obtaining  or  enjoying  employment  from  any  oth- 
er person,    shall    be  deemed  guilty  of  a   misde- 


THE  EMPLOYMENT  CONTRACT      59 

nieanor. "     There  you  have  the  projwrty  right  in 
labor  laid  down  in  an  express  constitution. 

No  Limitation  of  Wages. 

So  much  for  the  general  principle  of  the  con- 
tract and  its  safeguards.  Now  for  particulars  and 
restrictions.  In  the  first  place  as  to  wages  :  No 
A.nglo-Saxon  community,  so  far  as  I  can  find,  in 
modern  times,  has  prescribed  or  restricted  the 
rate  of  wages  paid.  And  by  a  decision  of  the 
Sui)reme  Court  of  Massachusetts  the  ancient  law 
regulating  wages  and  apprentices  is  expressly  de- 
clared to  be  no  part  of  our  common  law.  The 
constitution  of  Louisiana  expressly  .says  that  the 
Legislature  shall  never  fix  the  rate  of  wages. 

Perhaps  the  nearest  effort  to  regulating  wages 
was  that  law  of  the  State  of  Massachusetts,  piissed 
in  1892,  wliich  jjrohiliited  tlie  deduction  of  wages 
of  weavers  when  any  special  jnece  of  work  was 
imi)erfect,  even  to  the  point  of  worthlessness,  and 
for  the  employer  to  impose  a  fine  therefor.  This 
being  an  attempt  to  make  a  man  pay  for  what  he 
had  not  got,  the  Supreme  Court  of  Massachusetts 
itself  (which  perhaps  goes  as  far  as  any  court 
of  the  Union  to-day  in  sustaining  new  laws,  and 
most  narrowly  interprets  old  constitutional  prin- 
ciples) declared  this  law  unconstitutional.  As  a 
consequence  of  this,  tlie  next  Legislature  passed  a 
law    contenting    themselves   with    ordering    that 


6o  LABOR  IN  ITS  RELATIONS  TO  LAW 

where  a  deduction  was  made  for  imperfect  work, 
the  imperfection  should  be  pointed  out  to  the 
workmen  at  the  time  ;  which  is  certainly  a  reason- 
able provision,  so  that  no  one  has  thought  worth 
while  to  question  it. 

There  is  one  other  statute  somewhat  similar  to 
this,  that  in  Ohio,  passed  in  the  same  year,  which 
prohibits  any  reduction  or  retaining  of  wages  for 
materials,  tools,  or  machinery  destroyed  or  dam- 
aged. It  may  not,  perhaps,  be  clear  to  others 
than  lawyers  why  I  think  that  this  statute  is  per- 
fectly valid  and  the  Massachusetts  one  not.  But 
the  reason  is,  that  the  Massachusetts  statute  defi- 
nitely took  away  a  property  right,  while  this  one 
of  Ohio  merely  provides  that  a  separate  and  inde- 
pendent claim  for  damage  to  property  cannot  1  e 
fixed  by  one  party  to  the  contract,  and  set  off 
against  a  claim  of  the  other  party  of  a  wholly  dif- 
ferent nature,  that  is,  a  claim  for  or  against  a 
contract  claim  for  wages. 

Anti-Truck  Acts. 

There  have  been,  however,  many  statutes  copy- 
ing the  precedent  of  the  English  Truck  Act,  passed 
about  fifty  years  ago,  requiring  employees  to  be 
paid  only  in  lawful  money,  or  at  least  in  checks 
which  were  expressly  redeemable  in  lawful  money. 
You  are  all  aware  how  this  act  was  passed,  that  it 
was  levelled  at  the  abuse  which  existed  in  keep- 


THE  EMPLOYMENT  CONTRACT      6i 

ing  company  stores  and  forcing  employees  both 
to  buy  their  own  goods  at  possibly  exorbitant 
prices  of  the  employer  and  to  remain  in  his  debt 
permanently,  so  that  they  were  practically  under 
his  control.  Now,  this  is  a  very  interesting  ques- 
tion to  debate  on  constitutional  grounds,  for  it  is 
surely  a  very  good  example  of  a  law  that  we  all 
believe  in.  It  is  clearly  both  wise  and  expedient, 
and  one  which  removes  great  abuses  we  all  know 
to  have  existed.  Nevertheless  I  must  point  out 
that  the  courts  of  Pennsylvania  and  West  Virginia, 
in  most  vigorous  opinions,  since  approved  in  many 
of  the  Western  States,  have  declared  this  law  un- 
constitutional on  the  ground  that  a  full-grown 
American  citizen  has  a  right  voluntarily  to  make 
a  contract  to  accept  groceries  instead  of  money  if 
he  chooses.  The  West  Virginia  judge  thought 
that  the  right  to  contract  in  respect  of  property, 
including  contracts  for  labor,  was  property  pro- 
tected by  the  Constitution  ;  while  the  decision  in 
Missouri  went  more  particularly  on  the  ground 
that  this  statute,  which  there  applied  only  to  min- 
ing laborers,  was  unconstitutional  under  that  pro- 
vision of  the  Missouri  constitution  which  forbids 
class  legislation.  There  have  been  recent  deci- 
sions in  England,  where  the  judges  from  the 
bencli  have  stated  that  there  is  an  unwritten  prin- 
ciple, that  an  English  citizen  was  free  to  make  any 
contract,  neither  criminal  nor  immoral,  and  the 


62  LABOR  IN  ITS  RELATIONS  TO  LAW 

courts  would  enforce  it.  Now,  both  these  prin- 
ciples— that  of  freedom  of  contract  and  that  deny- 
ing class  legislation  or  legislation  applying  to 
particular  persons  only — are  only  limited,  but  they 
are  limited,  in  our  country,  by  one  other  doctrine 
which  may  be  regarded  as  an  unwritten  constitu- 
tional exception  to  this  constitutional  doctrine, 
and  that  is  known  as  the  "police  power,"  This 
is  that  doctrine  by  which  the  Legislature,  that  is,  a 
majority  of  people  acting  through  its  representa- 
tives, can  prohibit  certain  acts,  or  regulate  certain 
private  relations,  for  the  purpose  of  securing  the 
moral  and  physical  health  of  the  people.  The 
Western  court,  in  passing  on  this  Anti-Truck  Act, 
said  :  "  Under  pretence  of  this  power  the  Legisla- 
ture cannot  prohibit  harmless  acts  which  do  not 
concern  the  health,  safety,  and  welfare  of  society. " 
I  am  willing  to  accept  this  definition;  but  is  this 
truck  contract  a  harmless  act  ?  Labor  experience 
has  shown  it  to  be  a  very  harmful  act ;  an  act 
leading  to  great  fraud  and  abuse.  It  seems  to 
me,  therefore,  that  these  Southern  and  Western 
courts,  despite  their  excellent  motives  and  the 
stirring  rhetoric  in  which  they  announce  their 
decision,  might  well  have  considered  this  money- 
payment  matter  a  fair  one  for  police  regulation  ; 
particularly  just  because  the  need  of  the  law  was 
only  for  certain  trades,  as  the  mining  industry, 
for   instance,   which    is  necessarily    remote    from 


THE  EMPLOYMENT  CONTRACT      63 

markets,  and  where  many  of  the  employees  are  an 
ignorant  class,  with  little  knowledge  of  affaii"s. 
Sailors  have  been  the  subject  of  similar  protec- 
tion for  the  same  reason  from  time  immemorial. 
But  we  must  hurry  on. 

Weekly  Payments, 

After  rate  and  medium  of  payment,  we  natu- 
rally come  to  time  of  payment.  Many  of  our 
States  have  recently  been  passing  laws  requiring 
employers  of  labor  to  i)ay  wages  weekly,  fort- 
nightly, or  monthly,  and  to  pay  in  full  the  whole 
amount  that  may  be  due  up  to  a  few  days  before. 
Some  of  the  States  limit  this  restriction  to  corpo- 
ration employers,  for  the  express  object  of  meeting 
the  constitutional  objection.  For  our  States  can 
indirectly  compel  corporations  to  do  a  great  many 
things  which  it  might  not  be  constitutional  for 
them  to  require  of  individuals  ;  for  the  reason  that 
all  corporations  are  the  creature  of  the  State,  and 
if  they  refuse  to  obey  such  orders,  their  charter  is 
simply  taken  away.  But  some  States  have  de- 
clared these  weekly  payment  laws  to  be  unconsti- 
tutional, even  as  to  corporations  ;  and  in  every 
State  where  the  question  has  arisen  in  a  court  of 
last  resort,  weekly  payment  laws  a[)plying  to  in- 
dividuals have  been  declared  unconstitutional, 
with  the  exception  only  of  Miissachusetls. 


64  LABOR  IN  ITS  RELATIONS  TO  LAW 

Such  Laws  Constitutional  in  Massachusetts. 

The  Massachusetts  constitution  is  the  oldest 
and  in  some  respects  the  most  pecuhar  that  we 
find  in  any  State.  In  olden  times  the  people  of 
the  colony  of  Massachusetts  Bay  and  of  Plymouth 
had  made  and  submitted  to  a  vast  amount  of 
sumptuary  regulation  of  life.  It  had  been  pre- 
scribed by  law  what  they  should  eat,  drink,  and 
wear,  and  how  long  they  should  work  ;  and  it 
had  also,  of  course,  been  prescribed  by  law  what 
they  should  pay  for  their  work.  Now,  there  was 
nothing  peculiar  in  this  at  that  time,  because  this 
was  done  while  the  statutes  of  Elizabeth  were 
still  in  force  in  England.  Therefore,  to  my  mind, 
it  is  no  argument  that  because  the  primitive  status 
of  authority  justified  a  thing  in  the  seventeenth 
century,  it  should,  with  us,  be  cited  as  a  consti- 
tutional precedent  to  justify  the  same  in  the  nine- 
teenth. There  is,  however,  one  provision  in  that 
State  constitution  which  is  found  in  no  other 
State,  and  it  is  upon  this  principle  that  its  Su- 
preme Court  based  their  late  instruction  to  the 
the  Legislature,  declaring  that  a  weekly  payment 
law  applying  to  all  persons  in  that  State  would  be 
legal.  That  provision  is  contained  in  the  article 
of  the  Massachusetts  constitution  concerning  the 
legislative  branch  of  government,  and  says  that 
"  the  Legislature  may  make  all  manner  of  whole- 
some and  reasonable  orders,  laws  and  ordinances, 


THE  EMPLOYMENT  CONTRACT       65 

directions  and  instructions,  either  witii  penalties 
or  without,  as  they  shall  judge  to  be  for  the  good 
and  welfare  of  this  country,  so  as  the  same  be  not 
repugnant  or  contrary  to  this  constitution."  You 
see  that  this  wording  raises  the  question  whether 
it  has  not  expressly  abolished  the  unwritten  con- 
stitution ;  that  is,  whether  the  Massachusetts  con- 
stitution has  not  expressly  given  its  Legislature 
power  to  do  anything  not  contrary  to  its  exact 
words,  although  it  would  be  unconstitutional  at 
common  law  ;  and  the  Supreme  Court  of  Massa- 
chusetts at  present  rather  inclines  to  this  view. 
The  exact  point  we  are  discussing  seems  unim])or- 
tant.  If  I  hire  a  clerk  by  the  month  at  a  salary 
large  enough  to  make  it  (luite  easy  for  him  to  wait 
a  month  for  his  [)ay,  and  we  both  desire  it,  it  cer- 
tainly seems  an  interference  with  our  liberty  that 
we  should  iK^t  make  su<:h  a  contract,  though  it 
could  not  be  said  that  either  side  were  deprived 
of  an  im])ortant  liberty  by  the  restriction.  This, 
therefore,  is  an  example  of  a  case  which,  possibly 
expedient,  certainly  entirely  unobjectionable,  may 
nevertheless  be  unconstitutional  ;  and,  if  so,  we 
should  i)roceed  cautiously.  This,  at  least,  in  all 
States  except  Massachusetts. 

Expediency  of  Such  Laws. 

Now,  there  may  be  some  practical  justification 
for  refusing  to  consider  these  laws  constitutional. 
5 


66  LABOR  IN   ITS  RELATIONS  TO  LAW 

In  so  holding,  the  lUinois  court  says:  "  It  was 
suggested,  in  the  interest  of  employees  and  em- 
ployers as  well  as  in  the  public  interest,  that  em- 
ployees consent  to  accept  only  so  much  of  their 
wages  as  was  actually  necessary  to  their  suste- 
nance, reserving  payment  of  the  balance  until 
business  should  revive,  and  thus  enable  the  fac- 
tories and  workshops  to  be  open  and  operated 
with  less  present  expenditure  of  money.  Public 
economists  and  leaders  in  the  interests  of  labor 
suggested  and  advised  this  course.  In  this  State 
and  under  this  law  no  such  contract  could  be 
made.  The  employee  who  sought  to  work  for 
one  of  the  corporations  enumerated  in  the  act 
would  find  himself  incapable'  of  contracting  as  all 
other  laborers  in  the  State  might  do.  The  cor- 
porations would  be  prohibited  from  entering  into 
such  a  contract,  and  if  they  did  so,  the  contract 
would  be  voidable  at  the  will  of  the  employee, 
and  the  employer  subject  to  a  penalty  for  making 
it.  The  employee  would,  therefore,  be  restricted 
from  making  such  a  contract  as  would  insure  to 
him  support  during  the  unsettled  condition  of 
affairs  and  the  residue  of  his  wages  when  the  pro- 
duct of  his  labor  could  be  sold.  The  employees 
would,  by  the  act,  be  practically  under  guardian- 
ship ;  their  contracts  voidable  as  if  they  were 
minors  ;  their  right  to  freely  contract  for,  and  to 
receive  the  benefit  of,  their  labor,  as  others  might 


THE  EMPLOYMENT  CONTRACT      67 

do,  denied  them."  These  wise  words  will  show 
how  dangerous  it  is  to  regulate  human  action  by- 
law even  when  a  Legislature  may  foresee  nothing 
but  good  from  the  restriction. 

Screen  Laws. 

Their  are  certain  provisions  as  to  the  measuring 
of  wages  that  have  become  the  subject  of  much 
debate ;  for  instance,  that  miners  should  be  paid 
for  each  ton  of  coal  mined,  and  the  tons  weighed 
fairly  under  official  inspection  at  the  mine.  Most 
States  have  declared  this  law  unconstitutional. 
The  Illinois  decision  says  it  is  unconstitutional  on 
the  ground  that  the  employer  and  employee  hav(i 
the  clear  right  to  contract  for  a  wage  at  so  much 
per  day,  if  they  choose,  and  not  by  the  ton.  And 
so  far  as  the  decisions  rest  on  this  principle  they 
are  unquestionable.  But  apparently  some  of  them 
go  furtlier  and  set  aside  a  law  which  merely  i)ro- 
vides  for  the  method  of  weighing  the  coal  when 
the  miner  is  paid  for  it  by  the  ton.  But  this  again 
would  seem  a  fair  subject  of  police  regulation,  and 
therefore  constitutional  enough. 

Substantially,  therefore,  we  see  that  wages  in 
modern  times  have  not  been  regulated  b)-  law, 
nor,  doubtless,  is  it  expedient  to  do  so  ;  and  in  our 
country  most  of  the  statutes  which  attempt  to  regu- 
late the  time,  method,  and  conditions  of  paying 
them  have  been  declared  to  be  such  restrictions  on 


68  LABOR  IN   ITS  RELATIONS  TO  LAW 

personal  liberty  as  to  be  unconstitutional  when 
regarded  as  laws  made  by  the  State.  Of  course  it 
is  always  to  be  borne  in  mind  that  this  says  nothing 
as  to  their  expediency,  or  as  to  the  propriety  of 
labor  unions  or  other  combinations  insisting  on 
such  regulations,  and  pul)lic  sympathy  and  news- 
paper support  going  with  them. 

Eight-  and  Ten-Hour  Laws. 

The  next  question  in  importance  to  rate  of 
wages  is,  of  course,  that  of  length  of  a  day's  work. 
This  was  substantially  covered  in  my  first  lecture, 
and  I  will  merely  repeat  the  two  principles,  that 
on  the  one  hand  our  constitution — that  is  our 
principles  of  liberty — demand  that  a  man  should 
be  allowed  to  work  as  long  as  he  likes  ;  and  it  is 
at  least  doubtful  whether  even  from  the  most  selfish 
point  of  view  of  the  labor  interest  this  principle  is 
not  desirable.  It  is  the  province  of  labor  itself, 
through  its  unions,  to  prescribe  what  contract  for 
length  of  time  it  shall  make  rather  than  to  risk  the 
cast-iron  limitation  of  the  State.  From  the  Eng- 
lish Labor  Report  of  1893,  it  appears  that  many 
of  the  labor  unions  were  opposed  to  the  eight-hour 
law  on  the  ground  that  it  would  not  permit  them 
to  make  up  for  the  lean  years  by  working  over-time 
in  the  prosperous  years.  And,  on  the  other  hand, 
we  have  established  the  principle  that  the  State 
may  constitutionally  and  wisely  regulate  the  hours 


THE   EAIPLOYMENT  CONTRACT  69 

of  persons  not  fully  citizens,  and  so  unable  to  pro- 
tect themselves;  that  is,  of  women  and  children  ; 
and  the  factory  law-s  regulating  only  the  hours  of 
women  and  children  have,  since  their  adoption 
some  fifty  years  ago,  practically  determined  the 
length  of  the  day  for  men  as  well.  To  this  sym- 
pathetic determination  there  is,  ofroiirse.  no  con- 
stitutional objection.  But,  again,  in  these  years 
of  woman  suffrage,  and  under  the  modern  view 
that  a  woman  is  as  fully  competent  to  protect  her- 
self as  a  man  is,  it  is  e.\tremely  dilificult,  logically, 
to  sustain  the  eight-hour  law  as  to  women ;  and 
such  a  law  has,  in  fact,  been  annulled  in  Illinois, 
and  may  be  in  other  States,  with  the  e.xception  of 
Massachusetts,  where  it  has  been  definitely  sus- 
tained. Several  cases  where  the  laborer  himself 
desired  to  work  more  than  eight  hours  a  day  are 
now  on  their  way  up  to  the  Supreme  Court  of  the 
United  States.  Mr.  Edward  Atkinson  has  pro- 
posed to  test  the  (juestion  in  this  way  :  Suppose 
Haifa  dozen  middle-agetl,  intelligent,  unmarried 
women,  perfectly  competent  to  look  after  them- 
selves, who  are  engaged  in  some  skilled  manufact- 
uring labor  recpiiring  only  a  little  power,  were  to 
rent  an  electric  wire,  have  it  brought  into  their 
own  dwelling,  and  proceed  to  weave  and  spin  in 
their  own  house,  although  working  under  a  fac- 
tory and  getting  pay  from  it ;  suppose  they  chose 
to   work   fourteen  hours   a  day.  if  they  liked — as 


70  LABOR   IN   ITS  RELATIONS  TO  LAW 

many  a  woman  now  does  work  about  her  ordinary 
domestic  avocations — would  the  court  sustain  an 
officer  coming  in  and  arresting  them  as  having 
committed  a  criminal  offence  in  so  doing?  And  if 
the  courts  of  Massachusetts  would  sustain  such  a 
conviction,  would  public  sentiment  do  so?  I  con- 
fess I  have  great  doubt.  In  New  York,  under  a 
statute  requiring  the  city  of  Buffalo  to  employ 
laborers  only  eight  hours,  and  requiring  con- 
tractors with  that  city  to  follow  the  same  rule 
under  penalty  of  a  misdemeanor,  the  superintend- 
ent of  a  respectable  corporation  has  been  con- 
victed of  a  misdemeanor  for  allowing  some  of  his 
men  to  work  ten  hours  ;  and  the  case  is  now  on  its 
way  to  the  Supreme  Court  of  the  United  States. 
On  the  other  hand,  there  is  a  case  in  California 
directly  counter  to  this.  The  city  of  Sacramento 
passed  an  ordinance  that  nobody  working  for  the 
city  should  work  more  than  eight  hours  or  employ 
Chinese  labor.  The  latter  part  was  not  material 
to  the  case,  but  a  contractor  who  allowed  his  men 
to  work  more  than  eight  hours  was  indicted  in  the 
same  manner  as  in  the  New  York  case.  And  the 
court,  with  some  indignation,  held  that  such  a 
law,  while  invalid  even  in  a  civil  suit,  was  out- 
rageously so  when  it  made  a  person  not  a  city 
officer  who  violated  it  guilty  of  a  criminal  offence. 


TH!!   EMPLOYMENT  CONTRACT  71 

Labor  not  a  "  Commodity." 

Thus  we  have  attempted  to  show  the  historical 
growth  and  the  present  importance  of  the  great 
princijjle  that  the  labor  contract,  more  than  all 
contracts,  should  be  free  on  both  sides.  The  law 
is  certainly  not  slow  in  endeavoring  to  help  the 
laborer  where  it  can.  In  fact,  I  think  we  may 
fairly  state  that  the  industrial  laborer  at  least  is 
beginning  to  be  a  privileged  class  in  the  law. 
While  all  our  constitutions  demand  that  no  man 
or  set  of  men  should  have  special  privileges  from 
the  community,  I  think  you  will  agree  with  me 
that  the  many  laws  I  have  mentioned  go  quite  a 
little  way  in  giving  to  the  industrial  laborer,  at 
least,  advantages  and  protections  which  the  ordi- 
nary citizen  does  not  have.  But  I  must  hasten  to 
add  why  I  think  there  is  no  objection  to  this.  The 
theory  that  labor  is  property,  and  that  the  laborer 
is  like  anybody  else  having  property  to  sell,  is  mis- 
leading, unless  we  at  the  same  time  recognize  that 
while  he  has  goods  to  sell,  they  are  goods  of  a  very 
peculiar  nature,  being,  to  wit,  himself,  his  time, 
and  his  energies.  By  the  assumption  of  the  case, 
he  has  no  other  wares,  no  other  capital.  By  the 
assumi)tion  of  the  case,  he  must  sell ;  he  cannot 
wait  for  a  market.  The  seller  of  any  other  goods, 
by  the  very  fact  that  he  has  them  to  sell,  has  some 
capital  upon  which  he  can  live  while  he  is  trying 
to  make  a  satisfactory  contract.      Take  the  sim- 


72  LABOR   IN   ITS   RELATIONS   TO   LAW 

plest  case  of  all  for  instance — that  of  a  farm  girl 
who  goes  to  market  to  sell  eggs ;  if  she  cannot 
get  any  decent  price  for  the  eggs,  she  can  at  least 
live  upon  them  while  waiting  for  the  market  to 
improve ;  but  the  seller  of  labor,  and  above  all, 
of  specialized  factory  labor,  the  weaver  or  the 
laster,  who  can  turn  his  energies  to  nothing  else, 
whose  physique  does  not  probably  permit  him  to 
become  an  ordinary  day-laborer,  the  creature  of 
modern  complex  industrial  conditions,  is  pecul- 
iarly at  a  disadvantage  when  his  market  fails 
him.  Called  into  being  by  a  complex  social  sys- 
tem, he  has  an  ethical  right  to  demand  that  the 
social  system  which  has  so  narrowed  his  use  shall 
provide  him  with  reasonable  opportunity  to  exer- 
cise it.  That  is  the  ethical  ground  upon  which 
this  favoring  of  the  industrial  laborer  must  be  sus- 
tained, and  the  ground  upon  which  we  may  hope 
not  only  that  it  will  be  sustained,  but  will  be 
much  increased,  generally  through  the  labor  con- 
tract itself,  by  action  of  trades-unions  and  en- 
lightened employers,  but  sometimes,  where  it  is 
necessary,  by  legislative  act,  provided  only  that 
such  acts  are  not  destructive  of  the  principles  of 
liberty  under  which  we  live. 

"  The  Contract  System." 

There  has  been  a  tendency  of  late — it  seems  to 
me,  a  mistaken  one — on  the  part  of  labor  and  its 


THE   FMPLOYMENT   CONTRACT  7;, 

sympathizers  to  object  to  any  form  of  cx[)ress  con- 
tract witli  the  employers.  It  seems  to  me  that  this 
is  a  most  lamentable  step  backward.  A  part  of  the 
best  hope  of  the  laborer  lies  that  way.  The  most 
important  practical  case  so  far  arising  is  that  pro- 
vision, of  common  use  by  employers  for  a  very 
long  time,  which  seeks  to  protect  them  against  a 
capricious  or  malignant  desertion  of  the  work  on 
ihe  part  of  the  laborer,  l)y  the  penalty  clause,  a 
week's  or  a  month's  notice,  a  forfeiture  of  wages. 
This  reminds  me  that  in  speaking  of  the  special 
privileges  accorded  the  seller  of  labor  by  modern 
law  and  custom,  I  might  have  noted  as  perhaps 
the  most  important  of  all,  that  the  labor  contract 
is  the  only  one  which  one  party  is  practically  free 
to  break,  and  the  other  left  without  remedy. 
The  seller  of  any  other  kind  of  goods  must  per- 
form his  contract,  and  the  buyer  has  an  amjjle 
remedy  for  his  failure  to  do  so.  A  man  who  con- 
tracts to  build  a  house  cannot  put  up  four  walls, 
and  then  leave  it  without  a  roof  and  demand  pro- 
l)ortionate  pay  ;  but  a  man  who  contracts  to  sell 
his  labor,  although  it  be  for  the  completion  of  a 
complicated  piece  of  goods  requiring  long  time, 
may,  individually,  stop  work  at  any  time,  and  the 
employer  has  no  remedy.  Even  when  a  special 
contract  is  made  for  a  month  or  a  year,  llic  em- 
ployer has  practically  no  remedy,  for  the  laborer, 
having  only  labor,  is  not  responsible  as  a  capital- 


74  LABOR  IN   ITS  RELATIONS  TO  LAW 

ist,  and  for  all  time  our  law  has  refused  to  enforce 
the  specific  performance  of  the  labor  contract. 

Only  in  two  English-speaking  communities,  so 
far  as  I  know,  has  there  been  any  modern  law 
aimed  at  giving  the  employer  a  remedy  for  viola- 
tion of  the  labor  contract.  First  and  most  im- 
portant, is  the  recent  English  statute  under  which, 
in  certain  employments,  there  is  a  summary  proc- 
ess for  the  sudden  and  unexcused  refusal  of  a 
laborer  to  perform  his  work  ;  he  may  be  brought 
before  a  magistrate  and  sentenced  to  a  small  fine 
and  brief  imprisonment.  The  other  case  is  in 
South  Carolina  and  Arkansas,  where  contracts  for 
farm-labor  may  be  put  in  writing  and  witnessed, 
stating  the  length  of  time  or  what  particular  crop 
the  laborer  is  to  raise  and  gather,  and  what  and 
how  he  is  to  be  paid,  whether  by  money  or  shares 
in  the  crop,  and,  in  such  case,  when  a  contract 
is  thus  formally  made,  if  the  laborer  abandons  the 
contract  without  good  cause,  in  Arkansas  he  for- 
feits all  his  wages  due ;  in  South  Carolina  he  is 
guilty  of  a  misdemeanor ;  and  so  also  in  Louisi- 
ana, in  case  he  has  received  goods,  as,  for  instance, 
seeds  or  agricultural  implements,  upon  faith  of  the 
contract.  These  are  the  only  efforts  at  enforcing 
individual  labor  contracts  by  modern  statute.  Of 
course,  when  we  come  to  a  collective  breach  of 
contract  done  by  combination  or  conspiracy,  and 
particularly  when  done  for  the  purpose  of  injuring 


Tlin    rMPLOYMnNT   CONTRACT  75 

the  employer,  we  get  into  the  common  law  of 
strikes  and  boycotts,  which  is  a  very  dilTcrent 
thing.  But  individually,  the  contracting  laborer 
is  allowed  to  break  his  contract  without  a  penalty  ; 
and  can  never  be  forced  to  perform  it,  as  all 
other  contractors  of  any  kind  may  be. 

It  was,  therefore,  not  only  natural  but  rea.son- 
able  that  employers  should  require  some  notice, 
and  in  the  case  of  industrial  labor  it  has  commonly 
been  a  modest  demand — one  week  or  two  weeks. 
Nevertheless  this  notice  has  been  much  objected 
to  ;  statutes  have  already  been  introduced  in  some 
States  making  it  illegal,  and  the  Knights  of  Labor 
generally  are,  I  understand,  in  favor  of  prohibit- 
ing it.  The  State  of  Massachusetts,  for  instance, 
passed  a  law  providing  that  where  an  employer 
required  such  notice  from  his  employees,  the  em- 
ployees should  be  entitled  to  the  same  notice  from 
the  emjiloyer.  This  is  certainly  fair  enough.  But 
this  year  a  statute  was  passed  going  a  little  further. 
Whereas  the  first  law  i)rovided  that  the  employer 
might  discharge  a  laborer  in  case  of  a  general 
strike,  or  for  incapacity  or  misconduct,  without 
giving  the  laborer  such  notice,  a  statute  approved 
March  i6th  last  has  forbidden  this,  so  that  now 
a  Massachusetts  employer  who  requires  a  two 
weeks'  notice  of  intention  to  leave  from  his  em- 
ployees cannot  discharge  a  lal)orer  who,  for  instance, 
is   drunk,    or    who  wilfully    destroys  a  machine, 


76  LABOR   IN  ITS  RELATIONS  TO  LAW 

without  paying  liim  two  weeks'  wages  in  advance. 
Still,  even  this  is  a  trifling  matter  ;  and  so  far  no 
State  has  passed  a  statute  forbidding  employers 
and  employees  to  make  any  contract  other  than 
the  ordinary  indefinite  verbal  one.  Nevertheless, 
a  strong  effort  is  being  made  to  bring  such  a 
change  about.  In  the  Haverhill  strike  last  win- 
ter, the  avowed  ground  was  the  institution  of  the 
contract  system,  so  called.  Now,  the  contract 
made  or  imposed  upon  their  employees  by  the 
Haverhill  employers  against  whom  the  strike  wan 
called  was  a  very  bad  one  ;  notably  the  so-called 
"apprentice  contract,"  where  the  employers  went 
back  to  the  old  dodge  first  introduced  by  em- 
ployers in  the  time  of  Queen  Elizabeth,  by  which 
the  bulk  of  their  work  was  done  for  a  mere  pit- 
tance by  a  continual  succession  of  so-called  ap- 
prentices ;  the  only  difference  between  Haverhill 
and  Elizabethan  England  being  that  the  Haver- 
hill contract  did  limit  the  apprentice  employment 
and  pay  to  three  years,  while  under  the  statute  of 
Elizabeth  it  could  run  to  seven.  This  contract,  I 
say,  was  a  cleverly  devised  method  of  paying 
labor  an  unfair  price  under  a  misleading  induce- 
ment that  at  some  indefinite  future  time  they 
would  get  a  bonus,  or,  at  least,  l)e  employed  at  a 
full  rate.  As  a  matter  of  fact,  when  that  time 
came,  as  the  employees  claimed,  they  were  com- 
monly discharged  entirely.      But  granting  that  this 


Tlit   EMPLOYMENT   CONTRACT  77 

was  a  most  iniquitous  contract,  1  would  urge  that 
the  Haverhill  strikers  antl  tlieir  sympathizers,  and 
labor  sympathizers  in  other  cases,  will  make  a 
great  mistake  if  they  attack  the  general  use  of 
fair  and  clearly  defnied  contracts  rather  than  lim- 
iting their  attack  to  the  bad  contract  offered  in  any 
particular  case.  'I'he  (juestion  of  strikes  among 
railway  men  and  telegraph  operators,  for  instance, 
can  hardly  be  solved  without  it.  I  believe  that 
in  a  fair  and  clearly  e.\pres.sed  contract,  of  which 
both  sides  shall  have  a  copy,  and  with  whose  pro- 
visions they  shall  be  familiar,  lies  one  of  the  hopes 
of  improving  the  present  labor  situation.  The  in- 
definiteness  of  the  labor  contract  has  been  a  curse 
to  both  sides,  and  particularly  to  the  employee. 
By  all  means,  there  should  be  mutuality  ;  and  the 
trades-union  should  see  to  this.  If  they  cannot 
it  may  be  necessary  to  risk  a  statute  requiring  it. 
But,  as  in  the  recognition  of  the  laborer  as  a  citi- 
zen, free  to  contract,  capable  of  acquiring  con- 
tractual rights,  has  been  his  great  emancipation 
of  the  past  ;  so,  1  believe,  in  the  extension  of  the 
contract  idea,  in  the  recognition  of  the  collective 
contract,  combination  bargaining  on  both  sides, 
will  be  the  great  emancipation  of  the  future. 


Ill 

STRIKES  AND   BOYCOTTS 

The  Law  of  Conspiracy. 

The  subject  we  come  to  to-day,  to  a  student  of 
ethics,  is  perhaps  the  most  interesting  in  the 
whole  domain  of  law,  for  it  is  the  only  branch  of 
the  law — certainly  the  only  branch  of  civil  law  as 
distinct  from  criminal — where  a  higher  principle 
is  enforced  than  mere  legality,  where  the  law  it- 
self undertakes  to  go  into  the  higher  domains  of 
morality  and  ethical  purpose.  We  shall  find,  even 
in  the  law  of  strikes,  but  clearly  and  avowedly 
when  we  come  to  the  law  of  boycotts,  that  there 
are  two  great  points  in  which  this  law  differs  from 
all  other  legal  regulations.  First,  that  it  under- 
takes to  judge  men  and  their  conduct  as  the  re- 
cording angel  might  judge  them,  independent  of 
any  overt  act  ;  and  second,  that  it  undertakes  to 
judge  not  alone  what  men  do,  but  their  intention 
and  purpose  in  doing  it.  Now,  first  I  want  to 
clear  away  a  confusion  which  still  exists  in  the 
books  of  most  writers,  but  is  an  inheritance  from 
that   obsolete  Elizabethan   law  of  which  I    have 


STRIKES  AND  BOYCOTTS  79 

SO  often  spoken.  You  will  find  still  in  many  text- 
books, and  in  sonie  cases,  the  assertion  that  there 
cannot  be  such  a  thing  as  a  legal  strike.  In  fact, 
the  very  latest  published  text-book  on  the  subject 
— that  of  Cogley,  published  in  Washington  in  only 
1893 — declares  all  strikes  illegal,  for  the  reason 
that  they  are  necessarily  done  by  prearrangement 
between  many  workmen  to  cease  working  simul- 
taneously for  the  express  purpose  of  injuring  the  em- 
ployer. Now,  this  statement  is  not  the  law  to-day, 
and  it  is  not  the  law,  because  the  last  clause,  that 
all  strikes  are  for  the  express  purpose  of  injuring 
the  employer,  is  not  true.  The  explanation  of  the 
survival  of  this  notion  is  that  under  the  statute  of 
Elizabeth,  so  often  quoted,  and  other  old  English 
statutes,  it  was  illegal  to  pay  wages  beyond  the 
amount  limited  by  law,  and  as  a  consequence  of 
this  a  combination  to  enforce  such  higher  rate  of 
wages  was  necessarily  a  combination  with  an  ille- 
gal purpose.  Upon  this  ground  was  the  old  Joui- 
neymen  Tailors'  case  decided  in  England  in  1721, 
which  in  effect  made  all  strikes  or  labor  unions  to 
raise  wages  a  conspiracy  ;  and  that  was  the  law  in 
England  down  to  the  beginning  of  this  century ; 
but  it  was  never  fully  adoi)ted  in  this  country. 

Strikes  not  Illegal  in  the  United  States. 

The   cases   in    New   York,    Pennsylvania,  and 
Massachusetts     decided     early    in     this     century 


8o  LABOR   IN  ITS  RELATIONS  TO  LAW 

show  an  ever  bolder  intention  to  distinguish  the 
Journeymen  Tailors'  case ;  so  that  it  was  soon  es- 
tablished— certainly  before  the  year  1830 — that  a 
strike,  even  when  it  is  a  preconcerted  agreement  to 
leave  employment,  in  the  absence  of  any  breach 
of  express  contract,  is  not  a  conspiracy  which 
subjected  the  striker  either  to  civil  or  criminal 
liability.  Doubtless  this  tendency  of  our  courts, 
while  it  rested  morally  upon  general  considera- 
tions of  humanity,  rested  legally  on  the  ground 
that  they  held  the  old  English  labor  statutes  never 
to  have  become  part  of  the  Common  Law  in  this 
country.  But  whatever  be  the  reason,  such  is  the 
fact ;  and  a  strike,  merely  as  a  strike,  to  raise 
wages  without  other  motive,  was  never  illegal  in 
this  country.  And  in  England  tliey  soon  arrived  at 
the  same  result,  but  by  another  method.  There  an 
express  statute  had  to  be  passed.  There  are  sev- 
eral such  statutes,  but  they  may  be  said  to  date 
from  the  year  1S24."  In  that  year  an  act  was 
passed  providing  that  no  workmen  entering  into 
a  combination  to  advance  wages  or  lessen  work- 
ing time  shall  be  subject  to  prosecution  for  con- 
spiracy, or  any  criminal  punishment.  Now,  this 
act  also  provided  that  no  combination  to  induce 
another  to  depart  from  his  service  before  the  time 
for  which  he  is  hired,  or  to  induce  him  to  refuse 
to  enter  into  work,  or  to  force  the  employer  to 
carrv  on  his  business   in  a  certain    wav,  should   be 


STRIKES  AND  BOYCOTTS  8i 

an  illegal  conspiracy.  This,  as  we  shall  see  in  a 
moment,  was  going  too  far  ;  and  the  next  year 
that  i)art  of  the  statute  was  repealed  ;  but  the  re- 
pealing statute  still  jirovided  that  it  should  not 
be  penal  for  laborers  to  combine  for  the  sole  pur- 
pose of  determining  the  rate  of  wages  or  the 
hours  of  work,  or  to  enter  into  an  agreement 
among  themselves  for  the  purpose  of  fixing  such 
w^es  or  hours  ;  ami  in  the  course  of  the  next 
twenty  years  the  legality  of  all  trades-unions  was 
fully  established  in  England.  As  I  said,  they 
were,  in  my  opinion,  never  illegal  in  this  country. 

Intention  the  Test. 

But  we  shall  be  asked,  if  all  strikes  are  legal, 
how  is  it  then  that  even  last  year  certain  strikes 
were  declared  illegal,  and  certain  people  who 
ordered  them  or  took  part  in  them  were  actually 
punished?  This  brings  us  to  that  interesting  law 
of  conspiracy  which  I  spoke  of  in  the  beginning  ; 
and  I  fust  ask  you  to  note,  that  when  I  said  all 
strikes  were  legal,  I  did  not  .say  that  a  combina- 
tion uot  only  or  not  chiefly  to  raise  wages,  but 
mainly  to  injure  property,  or  some  definite  per- 
son, that  is,  what  we  now  call  a  boycott,  was 
legal.  A  naked  boycott,  a  boycott  having  for  its 
sole  purpose  the  injury  of  some  definite  person  or 
class  of  persons,  or  the  destruction  of  some  defi- 
nite property,  has  never  been  legal  either  in  Eng- 
6 


82  LABOR  IN  ITS  RELATIONS  TO  LAW 

land  or  America,  and  it  is  not  legal  to-day.  This 
is  one  of  the  oldest  doctrines  in  the  law,  dating 
back  to  1 2  2 1 ,  when  the  Abbot  of  Lilleshall  com- 
plained that  the  bailiffs  of  Shrewsbury  "did  him 
many  injuries  against  his  liberty''''  in  that  they 
caused  proclamation  in  the  town  that  none  should 
sell  to  him  or  his  men  under  penalty  of  ten  shil- 
lings. Why  is  this  ?  Why  is  a  combination  to  strike 
legal  and  a  combination  to  boycott  not  ?  The 
sole  answer  is  that  the  intention  is  different.  Here 
the  law  makes — in  some  cases  the  intention,  in 
others  the  purpose — the  sole  distinction.  There 
is  no  dry  letter  of  law  about  this  doctrine  ;  it 
punishes  or  inflicts  with  damages  the  offender  as  a 
parent  might  punish  a  child,  not  for  what  he  did 
do,  but  for  what  he  meant  to  do,  and  for  the  object 
he  had  in  doing  it.  The  law  of  conspiracy  may  be 
stated  most  concisely,  that  a  criminal  conspiracy, 
or  a  conspiracy  which  subjects  the  partaker  either 
to  criminal  punishment  or  to  damages  to  the  person 
injured,  is  either  (i)  a  combination  to  do  an  ille- 
gal or  immoral  thing,  or  to  injure  a  definite  person 
or  class  of  persons,  or  the  public  generally,  whether 
the  means  employed  be  legal  or  not,  and  although 
the  thing  sought  or  the  act  done  would  not,  in  the 
case  of  a  single  person,  subject  him  to  any  liabil- 
ity ;  or  (2)  it  is  a  combination  to  do  a  perfectly 
legal  thing  by  means  which  are,  or  any  one  of 
which  is,  criminal  or  illegal ;  and  in  both  cases 


STRIKES  AND  BOVCOTTS  83 

the  thing  punished  is  tlic  coiiibinatioii  to  do  to 
others  as  you  woukl  not  have  them  do  to  you,  and 
not  any  single  act;  nor,  indeed,  does  it  need 
any  act  whatever  to  make  the  combining  persons 
Hable  in  damages,  or  even  subject  to  the  criminal 
law.  You  will  see  what  l)road  ethical  ground  wc 
have  entered  upon  here.  Here  are  two  ethical 
points  novel  in  the  law:  First,  that  it  is  enough 
if  the  object  be  immoral  or  wrong — it  need  not  be 
illegal ;  second,  that  the  intention  is  made  crimi- 
nal even  without  the  act.  As  you  well  know,  in 
the  case  of  single  persons  the  law  does  not  go  into 
intentions  or  evil  dispositions  at  all,  when  no 
wrongful  act  has  been  done.  More  than  this, 
it  is  the  common  reproach  of  the  law  that  it  takes 
no  cognizance  of  acts  which  may  be  most  wrong- 
ful, most  immoral,  when  they  do  not  come  witliin 
the  definite  proscri[)tion  of  the  law.  An  intlivid- 
nal  by  himself,  as  every  melodrama  tells  us,  may 
ruin  another,  may  ruin  him  even  with  malice 
aforethought,  without  the  laws  interfering  to  pre- 
vent it  in  the  least  degree.  He  may  spend  his 
life  in  malevolence  to  some  other  person,  and  yet 
go  unpunished  on  this  earth.  It  is  a  stock  re- 
proach of  the  law  that  it  suffers  this.  But  what 
I  w'ant  to  emphasize  is  the  fact  that  in  this  doc- 
trine of  conspiracy  the  law  has  undertaken  to  do  all 
that  the  moralist,  perhaps  even  all  the  sentimen- 
talist,  would  have  it  do.      Now,  before  rejecting 


84  LABOR  IN  ITS  RELATIONS  TO  LAW 

this  vast  body  of  law  (the  only  province  in  which 
the  law  has  endeavored  to  be  simply  moral,  to 
look  solely  at  the  purpose,  to  judge  and  prevent 
those  acts  which,  not  technically  unlawful,  are  yet 
unjust  or  ruinous  to  others),  we  should  scrutinize 
most  carefully  the  position  the  law  takes,  for  if  it 
be  a  necessity  to  do  away  with  this  high  attitude, 
it  is  certainly  a  regrettable  one. 

Morality  of  Trade  Combinations  Considered  in  the  Law. 

The  legal  reasons  advanced  by  judges  and  text- 
writers  for  thus  going  into  the  domain  of  morality 
are  often  different.  Perhaps  unnecessarily  shy  of 
seeming  to  enforce  the  golden  rule,  judges  com- 
monly say,  for  instance,  that  the  reason  why  the 
law  will  punish  or  restrain  a  combination  of  a 
number  of  people  to  injure  a  definite  person  in  the 
absence  of  any  overt  act,  is  the  very  much  greater 
power  that  a  malevolent  disposition  has  to  hurt 
another,  when  it  is  shared  by  many  people  and 
artificially  fomented  among  them.  One  manu- 
facturer may  hate,  another  personally  ;  may  wish 
him  ill  in  his  business.  Of  that  evil  intent  the 
law  can  take  no  cognizance ;  but  when  a  dozen 
other  manufacturers,  perhaps  in  the  same  trade, 
get  together,  and  upon  a  common  basis  of  hate  for 
this  manufacturer,  and  such  malevolence  is  the  real 
purpose  of  the  combination,  then,  even  though 
they  have  done  nothing,  the  law  says  a  combina- 


STRIKES  AND   BOYCOTTS  85 

tion  of  this  kind  gains  such  strength  by  the  very 
fact  of  its  being  a  combination  that  we  will  re- 
strain and  punish  it  without  any  regard  to  what 
acts  they  may  have  committed.  In  the  first 
branch  of  conspiracy,  therefore,  that  kind  of  con- 
spiracy which  seeks  to  attain  an  unlawful  or 
immoral  purpose  or  a  definite  injury  to  a  tliird 
person,  there  is  no  question  of  acts  at  all  ;  only  in 
the  other  branch  of  conspiracy,  that  to  do  a  thing 
which  may  be  legal  and  moral  by  illegal  acts, 
does  the  question  of  the  act  become  material ;  and 
in  that  case  it  is  held  that  the  act  of  one  member 
of  the  combination  is  the  act  of  all,  if  it  naturally 
followed  from  what  they  undertook  to  do. 

Boycotts. 

The  general  American  law  upon  boycotts  will 
be  found  stated  in  two  cases,  one  in  Vermont,  the 
other  in  Ohio.  Thus,  in  the  case  which  arose  in 
Ohio,  a  bricklayers'  union  declared  a  boycott 
against  Parker  Brothers,  who  were  contracting 
bricklayers,  first,  to  get  paid  a  fine  imposed  ujion 
one  of  their  employees  who  was  a  member  of  the 
union,  and,  second,  to  reinstate  one  apprentice 
who  had  left  thi-m  and  make  them  discharge  an- 
other. Parker  P>rothers  refused.  The  union  de- 
clared a  boycott  against  them,  and  designated  one 
of  the  defendants,  P.  H.  McElroy,  to  enforce  it, 
and  paid  him  a  salary  of  twenty-seven  dollars  a 


86  LABOR   IN   ITS   RELATIONS  TO  LAW 

week  and  his  expenses  for  so  doing.  McElroy 
continued  in  the  work  a  number  of  months,  and 
issued  a  circular  to  all  material  men,  including 
Moors  &  Co.,  the  plaintiffs,  stating  that  Parker 
Brothers  were  discriminating  against  the  union, 
and  calling  upon  them  to  withdraw  their  patron- 
age from  Parker  Brothers,  and  announcing  that 
any  firm  dealing  in  building  materials  who  ig- 
nores this  request  is  hereby  notified  that  "we 
will  not  work  his  material  upon  any  building, 
nor  for  any  contractor  by  whom  we  are  em- 
ployed." This  was  signed  "  By  order  Brick- 
layers' Union,  No.  i."  The  plaintiffs,  who 
were  a  firm  selling  large  quantities  of  lime  to 
the  building  trade,  received  one  of  these  circu- 
lars, and  did  stop  sending  lime  to  Parker  Broth- 
ers by  delivery,  but  Parker  Brothers  sent  a  team- 
ster who  bought  it  for  cash  at  the  plaintiffs'  cars. 
McElroy,  discovering  this,  sent  to  all  the  plain- 
tiffs' customers  and  probable  customers  a  circular 
stating  that  members  of  the  Bricklayers'  Union 
will  not  use  materials  supplied  by  Moors  &  Co. 
and  four  other  dealers,  the  effect  of  which  circu- 
lar was  to  interfere  with  Moors  &  Co.'s  business, 
and  to  cause  a  loss  of  customers  who  feared  a 
similar  fate.  Judge  Taft,  in  a  most  carefully 
written  decision,  held,  in  the  first  place,  that  the 
declarations  made  to  Moors  &  Co.  by  those  of 
their  customers  who  withdrew  their  custom,  made 


STRIKES  AND  BOYCOTTS  87 

at  the  time  they  did  so,  that  it  was  for  fear  of  the 
boycott,  were  competent  evidence  in  the  case ; 
and  then,  the  court  went  on  to  say  :  "  Generally 
speaking,  if  in  the  exercise  of  the  right  by  one  to 
carry  on  his  business  or  bestow  his  labor  in  his 
own  way,  another  suffers  a  loss,  he  has  no  ground 
of  action,  there  being  no  legal  injury  ;  but  in  the 
exercise  of  common  rights  which  result  in  a  mu- 
tual interference  and  loss,  such  loss  is  a  legal  in- 
jury or  not.  according  to  the  intent  with  which 
it  has  been  caused,  and  the  presence  or  absence 
of  malice  in  the  person  causing  it.  Here  the  acts 
were  done  expressly  to  inflict  loss  upon  the  plain- 
tiffs, and  such  loss  resulted.  If  they  were  mali- 
cious they  were  actionable.  When  intentional 
and  wilful  acts  are  committed,  calculated  to  cause 
damage  to  a  person  in  his  lawful  business,  and 
done  with  the  unlawful  ])urpose  of  causing  such 
damage  without  right  or  justifial)le  cause,  and  such 
actual  damage  does  occur,  the  i)erson  injured  may 
sue  any  person  committing  such  act  ;  or  in  case 
there  be  a  number  combining  for  that  purpose, 
the  persons  may  be  indicted  for  the  conspiracy, 
even  without  showing  any  actual  damage  to  the 
person  or  the  persons  against  whom  it  is  aimed." 
But  to  my  mind  the  most  instructive  case  on 
the  whole  subject  is  the  Vermont  case  of  State  v. 
Stewart,  decided  in  18S7.  This  was  an  indict- 
ment   for  a    conspiracy    to    hinder    the    Ryegate 


88  LABOR  IN   ITS  RELATIONS  TO  LAW 

Granite  Works  from  employing  certain  granite 
cutters,  who  as  a  matter  of  fact  were  not  unionists, 
and  to  hinder  and  deter  them  from  accepting  em- 
ployment in  the  Ryegate  Works,  the  real  object 
being,  by  such  injury  to  the  company  and  threats 
or  insult  to  the  men,  to  deter  them  from  working, 
and  so  compel  it  to  conform  to  the  regulations 
of  the  National  Stone-cutters'  Union.  The  court 
held  that  a  conspiracy  to  interfere  with  the  lawful 
prosecution  of  the  industry  of  a  third  person,  as 
well  as  to  control  the  free  use  by  workmen  them- 
selves of  their  own  labor  for  such  persons  as  they 
pleased,  was  a  criminal  conspiracy  both  by  the 
common  law  of  England  and  tliat  of  Vermont,  and 
said  :  "  The  boycott  is  not  the  remedy  to  adjust 
the  differences  between  capital  and  labor." 

Conflict  of  Opinions  on  Boycotting. 

This  boycott  question  is  the  very  latest  devel- 
opment of  labor  law,  and  is  not  yet  authoritatively 
settled,  throughout  this  country  at  least.  On  the 
surface  the  decisions  appear  to  conflict ;  but  I  be- 
lieve that  the  statement  I  have  made  is  an  approx- 
imation of  what  the  law  is  going  to  settle  down  to. 
Certainly,  it  is  the  only  principle  upon  which  any 
attempt  can  be  made  to  reconcile  the  boycott 
cases.  Thus,  in  a  New  York  case,  on  the  one 
hand,  the  keeper  of  a  large  saloon  on  Fourteenth 
Street  was  boycotted.       Masses  of  workmen  pa- 


STRIKES   AND   BOYCOTTS  89 

raded  the  street  with  bands  and  opprobrious  epi- 
thets, which  practically  prevented  the  public 
from  trading  at  his  place.  Judge  Barrett  decided 
that  it  was  an  illegal  conspiracy  by  which  both  an 
unlawful  injury  to  his  property  was  effected,  and 
the  person  taking  part  became  liable  to  the  crimi- 
nal law ;  and  they  were  convicted  by  a  jury  and 
sentenced.  And  Judge  Barrett  said  that  i)hysical 
violence,  or  even  the  threat  of  physical  violence, 
was  not  necessary;  that  people  in  modern  life 
might  be  deterred  from  doing  business  by  other 
means,  such  as  by  insult  or  opprobrious  epithets, 
and  the  fact  that  the  weak  or  gentle  might  be  de- 
terred from  patronizing  the  shop  was  a  sufficient 
menace  to  make  it  a  criminal  offence.  Generally 
stated,  however,  there  was  nothing  actually  done 
in  this  case  which  the  employees  had  not  a  perfect 
right  to  do.  They  had  a  perfect  right  to  walk 
up  and  down  the  street  in  front  of  anybody's  shop. 
Now,  on  the  other  hand,  in  a  similar  case  which 
occurred  in  Boston  only  a  few  months  ago.  Judge 
Oliver  Wendell  Holmes  held  that  such  parading 
up  and  down  in  front  of  a  shop  for  the  purpose  of 
inducing  other  laborers  not  to  work  for  the  objec- 
tionable employer  was  not  a  criminal  conspiracy, 
and  not  even  a  conspiracy  which  gave  the  shop- 
keeper a  right  to  a  civil  remedy  or  to  an  injunc- 
tion. At  first  sight,  it  might  seem  impossible  to 
reconcile  these  two  cases,  which   I  have   taken  as 


90  LABOR   IN   ITS  RELATIONS  TO  LAW 

samples ;  but  I  believe  they  very  neatly  show  just 
where  the  true  law,  and  I  may  add  true  moral- 
ity, lies.  In  the  New  York  case  it  became  evi- 
dent in  the  whole  trial  that  the  main  object  of 
the  combination,  though  it  may  have  started  in 
a  labor  dispute,  was  not  to  improve  the  condi- 
tion of  the  striking  employees,  get  them  better 
hours  or  anything  of  that  sort ;  by  the  time  the 
case  got  into  the  courts,  at  least,  it  was  evident 
that  the  main  object  of  their  combination  was 
to  injure  that  particular  employer ;  but  in  the 
Boston  case  the  main  object  of  the  combination 
still  was  to  get  better  wages,  by  refusing  to  work 
themselves  and  by  persuading  others  not  to  go  to 
work  in  their  places  ;  and  the  court  must  have 
thought  that  this  persuading  was  the  act,  not  the 
purpose,  of  the  combination.  You  will  note  that 
the  acts  done  in  both  cases  were  precisely  the 
same.  They  can  only  be  distinguished  on  this 
moral  ground  ;  but  I  believe  that  that  may  be  a 
satisfactory  and  a  sufficient  reason  for  distinguish- 
ing them.  In  other  words,  the  question  in  any 
case  of  boycott  is,  what  do  the  persons  com- 
bining really  want  ?  Do  they  want  solely  and 
simply  by  fair  means  to  better  their  own  con- 
dition ?  Or  have  they  got  into  such  a  state  of 
mind  that  they  want  maliciously  to  injure  some 
particular  employer,  either  their  own  or  somebody 
else's  ? 


STRIKES  AND  BOYCOTTS  91 

Illegal  Acts  and  Illegal  Purpose. 

I  do  not  wish  to  confuse  this  statement,  which 
I  hope  is  a  clear  one,  by  any  quahfication  ;  but 
lest  I  may  not  appear  fully  to  cover  the  subject, 
I  must  note  that  there  is  one  other  point  which 
may  tend  to  such  confusion  if  I  do  not  speak  of  it, 
and  which,  perhaps,  may  have  hatl  something  to 
do  with  this  New  York  case;  that  is,  the  question 
of  an  illegal  act.  You  will  remember  that  what  I 
call  the  second  kind  of  conspiracy — by  the  way,  I 
much  prefer  the  phrase  "  illegal  combination,"  for 
the  very  word  "conspiracy"  seems  to  imply 
something  criminal — the  second  kind  of  illegal 
combination  was  tliat  to  accomplish  a  lawful  pur- 
pose by  acts  avowedly  illegal,  or  by  means  which 
would  necessarily  become  illegal.  That  is,  if  in 
these  cases  the  striking  employees  did  have  as  a 
sole  ol)ject  the  bettering  of  their  own  condition, 
and  did  not  wish  or  intend  to  injure  their  em- 
ployer, nevertheless,  if  circumstances  were  such 
that  they  could  only  persuade  otlier  emjjloyees 
from  going  to  work  for  him  by  intimidation,  the 
combination  would  have  been  unlawful. 

And  now  we  may,  from  these  two  cases,  draw 
also  another  distinction  which  helps  to  make  the 
subject  clearer  still,  namely,  that  it  is  always  ille- 
gal for  persons  to  combine  to  ])revent  other  per- 
sons from  trading  with  A  B.  btit  it  is  not  always 
illegal  to  combine   for  the   purpose  of  persuading 


92  LABOR  IN   ITS  RELATIONS  TO  LAW 

Other  laborers  from  working  for  A  B.  Now,  this 
distinction  is  entirely  inexplicable  except  upon 
the  ground  I  have  mentioned,  that  in  the  one 
case  it  is  more  clear  than  in  the  other  that  the  in- 
tent of  the  persons  combining  is  to  injure  A  B. 
Of  course,  if  actual  intimidation  is  used  in  either 
case,  that  is  an  illegal  act,  and  the  conspiracy  may 
therefore  become  illegal  under  what  I  have  called 
the  second  ground,  although,  on  the  other  hand, 
it  is  possible  that  any  specific  act  of  intimidation 
might  be  punishable  without  holding  that  such  act 
was  so  necessarily  a  consequence  of  the  whole 
combination  as  to  make  the  combination  itself 
illegal. 

In  the  same  way,  it  makes  a  great  difference 
whether  the  combination  is  made  among  em- 
ployees or  outsiders  and  directed  against  their 
employer  or  others.  Employees  may  freely  or- 
ganize, adopt  rules,  impose  penalties,  or  coerce 
themselves,  but  not  third  persons  ;  still  less  can 
third  persons  combine  to  coerce  a  person  not  em- 
ploying them.  For  in  such  case  there  can  be  no 
possible  intentions  of  benefiting  the  consjurators, 
but  at  best  a  desire  to  help  their  fellow-workmen  ; 
and  the  law  does  not  yet  recognize  altruism  to 
this  extent. 

And  just  as  men  may  not  combine  to  do  what 
they  may  lawfully  do  individually,  they  may  not 
in  many  cases  threaten  to  do  what  in  doing  were 


STRIKES  AND   BOYCOTTS  93 

lawful  enough.  A  strike  may  be  lawful,  when 
the  threat  of  striking  is  not.  It  has  been  decided 
that  while  considerable  "picketing"  is  lawful, 
a  threat  to  picket  is  not.  So  a  man  may  do  that 
himself  which  he  may  not  persuade  others  to 
do.  And  as  w-e  have  just  seen,  it  may  be  lawful 
for  individuals  to  persuade  others  not  to  work  for 
A  B,  but  not  to  combine  with  that  purpose. 

The  Moral  Test  of  Trade  Combination. 

So  much  for  the  law  of  boycotting  as  it  stands 
to-day.  In  determining  wliether  any  combina- 
tion is  illegal  conspiracy,  you  have  to  ask  yourself, 
first,  Does  it  try  to  accomplish  an  illegal  thing? 
second.  Does  it  try  to  accomplish  an  immoral 
thing?  as  if  it  seeks  to  injure  some  definite  per- 
son, or  class  of  persons,  either  by  restricting  him 
in  the  full  use  of  his  faculties,  or  by  injuring  or 
destroying  any  piece  of  property  which  he  owns. 
And  if  it  do  none  of  these,  you  have  still  to  ask 
yourself  (although  it  is  perhaps  a  combination 
for  a  perfectly  legal  thing).  Was  it  contemplated, 
or  does  it  necessarily  imply,  that  the  persons  so 
combining  in  fact  agreed  to  accomplish  that  end 
by  unlawful  means,  as,  for  instance,  by  murder 
and  destruction  of  property  on  the  one  hand,  or 
by  threats  and  intimidation  on  the  other,  or  by 
fraud  or  any  other  thing  which  the  laws  forbid  ? 


94  LABOR   IN  ITS  RELATIONS  TO  LAW 

Sympathetic  Boycotts. 

Now,  you  will  note  that  this  reasoning  entirely 
destroys  what  is  called  the  sympathetic  boycott  as 
a  remedy  which  labor  may  legally  use.  I  make 
no  comment  on  this.  I  merely  state  the  fact. 
When  the  employees  of  a  railroad  combine  to 
prevent  the  owner  of  Pullman  cars  from  having 
free  use  of  his  property,  it  is  perfectly  clear  that 
they  combine  to  injure  that  owner  ;  and  as  they 
have  no  contract  relation  with  him  at  all,  it  is 
clear  that  their  motive  cannot  be  to  get  him  to 
raise  their  own  wages.  Undoubtedly  this  is  tak- 
ing away  a  strong  weapon  from  combined  labor, 
but  the  question  is  whether  it  is  taking  away  not 
a  strong  weapon,  but  a  weapon  which  labor  has 
any  right  to  use.  If  I  am  annoyed  by  an  or- 
dinary trespass  on  my  property,  I  may  take  the 
man  by  his  neck  and  shoulders  and  put  him  out ; 
but  I  certainly  may  not  explode  a  dynamite 
bomb  under  his  feet.  When  we  say  that  the  em- 
ployees of  the  Pullman  Car  Company,  for  in- 
stance, had  a  perfect  right  not  only  to  combine 
not  to  work  themselves,  but  individually  to  per- 
suade all  the  workmen  in  America  not  to  work, 
we  have  given  them  all  the  weapons  of  warfare 
that  the  law  at  present  permits  to  them.  The 
sympathetic  boycott,  therefore,  is  illegal.  Now, 
how  about  the  sympathetic  strike  ? 


STRIKES  AND   BOYCOTTS  95 

Strikes  may  be  Illegal. 

W'c  have  sliown  that  the  ordinary  strike  by 
itself  has  never  l)een  illegal  in  this  country,  and 
was  probably  only  illegal  a  century  ago  in  Eng- 
land on  account  of  the  peculiar  interference  of  the 
government  in  labor  questions.  We  shall  find  a 
singular  repetition  of  this  result  of  government 
interference  when  we  come  to  consider  our  statutes 
against  trusts;  but  for  the  present,  and  without 
such  interference  of  {)eculiar  statutes,  a  strike  is 
l)erfectly  legal ;  and  this  because  the  direct  object 
of  a  strike  is  clearly  to  bring  about  the  definite 
improvement  of  condition,  or  increase  of  wages, 
or  decrease  of  working  hours,  for  which  the  strike 
was  instituted  ;  and  although  the  result  may  be 
to  injure  the  employer,  yet  that  is  regarded,  first, 
as  too  remote  for  the  law  to  take  cognizance  of, 
and,  secondly,  as  the  mere  necessary  consecjuence 
of  the  ordinary  efforts  of  persons  to  better  their 
own  condition,  just  as  competition  in  trade,  even 
when  a  combined  competition,  is  perfectly  legal, 
although  any  one  person  in  the  same  line  of  busi- 
ness be  injured  or  ruined  thereby.  But  now  sup- 
pose the  strike  is  done  in  such  a  peculiar  way  as 
to  unnecessarily  injure  the  employer,  so  that  the 
intention  to  injure  becomes  manifest.  A  i)recon- 
certed  strike  is  avowedly  a  combination.  If  the 
motive  of  personal  injury  is  clear,  does  it  thereby 
become  illegal? 


96  LABOR  IN  ITS  RELATIONS  TO  LAW 

You  will  find  plenty  of  authority  that  it  does. 
For  instance,  in  Nebraska,  which  is  not  a  State 
commonly  supposed  to  be  over-ready  to  favor  capi- 
tal, there  is  a  case  where  eighteen  tailors  emplo)'ed 
by  one  employer,  having  all  of  them  taken  out 
pieces  of  cloth  to  be  made  into  garments,  the 
cloth  being  already  cut,  agreed  to  strike  on  a  cer- 
tain March  31st,  and  return  all  their  jobs  unfin- 
ished, and  in  such  condition  that  the  cloth's  value 
was  destroyed,  and  the  employer  not  being  able 
to  get  other  labor,  suffered  money  damage.  The 
Nebraska  court  here  held  that  although  any  la- 
borer had  the  right  to  leave  his  work  when  he 
choose,  yet  the  preconcerted  arrangement  by  all  in 
this  case  bore  such  evidence  of  a  specific  attempt 
to  injure  the  employer  that  an  action  for  damages 
against  the  strikers  would  lie.  So  the  United 
States  courts  have  held  that  a  strike  so  organized 
and  managed  as  to  appear  to  be  expressly  aimed 
at  retarding  the  United  States  mail,  that  being  an 
illegal  purpose,  became  thereby  an  unlawful  con- 
spiracy. Nevertheless,  my  opinion  is,  and  the 
brief  time  remaining  compels  me  to  state  in  this 
bald  way  what  merely  is  a  personal  opinion,  that 
it  is  hopeless  for  the  law  to  go  into  such  a  ques- 
tion of  incidental  motive  when  the  strike  is  other- 
wise  legal,  and  is  conducted  in  an  orderly  way. 
It  would  be  hopeless  for  the  courts  to  organize  a 
definite  body  of  law  which  should  state  just  when 


STRIKES  AND  BOYCOTTS  97 

it  was  fair  for  all  the  employees  of  a  railroad  or  a 
mill  to  leave  work.  They  have  the  undoubted 
common-law  right  to  leave  at  any  time,  individ- 
ually or  all  together,  and  while  it  is  possible  that 
a  mere  malicious  leaving  of  the  work  without  any 
demand  for  higher  wages  or  anything  of  that  sort, 
could  be  called  an  unlawful  combination,  yet  the 
moment  any  specific  demand  comes  in,  the  courts 
must  necessarily  take  that  to  be  their  main  mo- 
tive. At  the  most,  the  question  whether  they  left 
work  in  such  a  way  as  to  indicate  a  malignant 
purpose,  could  only  be  left  to  a  jury  to  determine 
the  fact ;  and  there,  as  it  seems  to  me,  the  ques- 
tion may  safely  rest.  It  is  perfectly  legal  to  pro- 
vide against  such  an  abandonment  of  important 
occupations  as  to  work  great  damage  to  the  com- 
munity ;  and  many  States  have  .so  provided  ;  that, 
for  instance,  in  the  case  of  engineers  of  railroad 
trains,  they  may  not  leave  work  until  the  day's 
run  is  completed,  the  cars  left  in  the  depot  of 
their  destination,  and  the  engine  safely  housed. 
This  in  order  to  prevent  the  starving  of  passengers 
— women  and  children — as  has  sometimes  hap- 
pened by  being  left  in  the  wilderness,  possibly 
during  a  snow-storm.  But  in  a  general  way,  and 
in  the  absence  of  such  reasonable  statute,  I  believe 
that  the  courts  will  finally  .settle  down  into  the 
view  not  only  that  a  strike  is  legal,  but  that  being 
legal  it  may  bo  organized  at  any  time  the  laborers 
7 


98  LABOR  IN  ITS  RELATIONS  TO  LAW 

choose.  And  now  as  to  the  sympathetic  strike. 
As  in  the  case  of  the  boycott,  I  am  bound  to  say 
that  as  the  law  stands  to-day  the  sympathetic 
strike  is  always  illegal ;  that  is,  a  strike  avowedly 
not  to  obtain  higher  wages  for  themselves,  but  for 
some  other  body  of  employees,  possibly  not  even 
in  the  same  employment,  is  not  such  a  motive  of 
benefiting  themselves  as  will  justify  the  combina- 
tion which  has  as  a  result  and  purpose  the  injury 
of  their  own  employer,  or  the  forcing  him  to  boy- 
cott a  third  party.  But  even  here,  as  I  hold  the 
future  of  labor  law  to  lie  largely  in  its  recognition 
of  what  has  been  called  collective  bargaining,  so 
I  believe  that  a  body  of  law  will  grow  up  which 
will  recognize  the  strike  in  one  part  of  a  trade  to 
benefit  those  employed  in  another  part  of  a  trade, 
or  even  a  different  trade  entirely,  as  dictated  by  a 
motive  which  in  the  large  sense  is  so  clearly  of 
benefit  even  to  the  striking  laborers  themselves  in 
the  long  run,  as  to  make  the  combination  a  justifi- 
able one  ;  particularly  when  conducted  by  a  re- 
sponsible trades-union,  including  all  parties  on 
the  labor  side.  The  law,  however,  in  this  country 
at  least,  has  not  yet  come  to  this  large  view.  In 
England,  which  has  been  always  some  years  in 
advance  of  us  upon  labor  questions,  there  are 
statutes  expressly  recognizing  it. 


STRIKES  AND  BOYCOTTS  99 

Illegal  if  by  Persons  Under  Contract. 

Of  course,  if  a  strike  amount  to  the  breaking  of 
a  definite  contract,  that  being  illegal  in  itself  and 
made  expressly  so  by  the  statutes  of  many  of  our 
States,  and  by  the  English  statute,  it  will  render 
the  whole  thing  illegal  ;  and  this  is  undoubtedly 
the  most  logical  reason  that  laborers  have  for  ob- 
jecting to  any  definite  contract-system  which  makes 
employment,  instead  of  being  from  day  to  day, 
from  week  to  week,  from  month  to  month,  or  even 
from  quarter  to  quarter.  For  instance,  there  were 
threats  some  weeks  ago  of  a  strike  on  the  West  End 
Railway  at  Boston,  at  the  time  of  the  Christian 
Endeavor  Convention,  to  be  organized  then  for  the 
very  purpose  of  increasing  the  damage  to  the  rail- 
way. Would  such  a  strike  have  been  legal  ?  I 
think  perfectly  so  ;  but,  undoubtedly,  if  all  the  em- 
ployees had  been  employed  by  contract  requiring 
both  sides  to  give  thirty  days'  notice,  the  combi- 
nation to  hrcak  this  contract  would  have  been  il- 
legal. Nevertheless,  1  l)elieve  that  labor  should 
take  a  higher  view  and  recognize  that  the  advan- 
tages of  a  definite  and  fair  contract  far  outweigh 
the  value  of  this  particular  weapon,  which,  after 
all,  is  a  somewhat  vindictive  one.  I  doubt  very 
much  if,  in  the  long  run,  a  strike  with  such  a  pur- 
pose of  excessive  or  specific  injury  to  the  employer 
does  any  good  to  the  employee.  It  leads  to  vin- 
dictive feeling  on   both  sides,  and   probably  the 


loo        LABOR  IN   ITS  RELATIONS  TO  LAW 

employer  will  get  even  with  the  striking  employees 
sooner  or  later. 

Persuading  of  Strikes. 

The  leading  case  on  strikes  to-day  is  the  North- 
ern Pacific  Railroad  case,  which  is  most  instruc- 
tive in  showing  the  distinction  I  have  just  taken, 
for  the  reason  that  in  the  first  case  the  lower  court 
granted  an  injunction  against  the  striking  railway 
operatives,  both  from  persuading  others  to  strike, 
and  from  striking  themselves  in  such  a  manner 
as  to  cripple  the  employer's  business.  But  upon 
appeal,  Judge  Harlan  of  the  Supreme  Court  of  the 
United  States  rendered  another  opinion  which  an- 
nulled this  part  of  the  injunction  (Arthur  vs. 
Oakes,  63  F.  R.,  310). 

Union  Labor. 

This  brings  us  to  the  great  question  of  trades- 
unions,  and  to  the  question  of  employing  or  not 
employing  union  labor.  The  subject  of  trades- 
unions  themselves,  I  have  reserved  for  the  last  lect- 
ure, as  I  believe  them  to  be  one  of  the  remedies 
of  the  future  ;  but  the  question  of  employers  dis- 
charging men  because  they  are  members  of  a 
union,  or  of  unions  forcing  employers  to  discharge 
men  who  are  not  members  of  a  union,  rather 
comes  under  the  liead  of  the  boycott,  which  we 
are  now  considering. 

Trades-unions  were,  undoubtedly,  at  one  time 


STRIKES  AND  BOYCOTTS  loi 

held  10  be  illegal  in  England  ;  probably  never  so 
in  this  country  ;  and  now  there  are  express  stat- 
utes in  nearly  all  the  States  authorizing  and  en- 
couraging their  formation.  In  fact,  the  only  diffi- 
culty with  us,  as  in  England,  is  to  persuade  the 
trades-unions  to  come  under  the  law  and  make 
themselves  legal  corporations.  The  members  pre- 
fer power  without  responsibility,  and  fear  the 
liability  to  injunctions  which  an  organization 
would  give  them.  There  have  been  many  acts  in 
England  legalizing  trades-unions,  passed  in  the 
nineteenth  century.  I  have  only  time  to  men- 
tion the  act  of  1871,  now  in  force,  because  its 
provisions  go  into  such  details  as  to  be  very  in- 
structive to  any  student  of  the  labor  question. 
The  Trades-Union  Act  was  passed  in  connection 
with  the  Criminal  Law  Amendment  Act  relating  to 
intimidation,  etc.  That  is,  on  the  same  day,  Par- 
liament pas.sed  one  act  to  show  how  far  workmen, 
individually,  might  go  in  industrial  warfare,  and 
another  stating  clearly  how  far  they  could  com- 
bine for  the  purpose. 

This  act  i)rovidcd  that  any  person  who  should 
(i)  use  violence  to  persons  or  property,  (2)  threat- 
en or  intimidate  any  person  in  such  manner  as 
would  justify  a  binding  of  him,  to  keep  the  peace, 
by  a  magistrate,  (3)  molest  or  olstruct  any  person 
in  any  of  the  following  ways  ;   that  is  : 


I02        LABOR   IN   ITS  RELATIONS  TO  LAW 

(i)  By  persistently  following  him  ;  (2)  by  hid- 
ing tools,  clothes,  or  other  property  owned  or  used 
by  him,  or  depriving  him  of,  or  hindering  him 
in,  the  use  thereof;  (3)  by  watching  or  besetting 
the  house  or  place  where  he  lives  or  works,  or 
the  approach  thereto,  or  following  him  in  bands, 
of  at  least  three  persons,  in  a  disorderly  manner 
through  any  road,  with  a  view  to  coerce  such  per- 
son being  a  master,  (i)  to  dismiss,  or  cease  to 
employ,  any  workman  ;  (2)  not  to  offer  any  em- 
ployment or  work  ;  (3)  to  belong,  or  not  to  be- 
long, to  any  association  or  combination,  tempo- 
rary or  permanent ;  (4)  to  pay  any  fine  imposed 
by  such  association,  etc.;  (5)  to  alter  the  mode 
of  carrying  on  his  business,  or  the  number  or  de- 
scription of  any  persons  employed  by  him.  Or, 
being  a  workman,  to  quit  any  employment,  or  re- 
turn work  unfinished  ;  or,  being  a  master  or  work- 
man, (i)  to  belong  to,  or  not  to  belong  to,  any 
temporary  or  permanent  association  or  combina- 
tion; (2)  to  pay  any  fine  or  penalty  imposed 
thereby. 

The  actions  above  defined  are  made  criminal 
offences,  provided  that  no  person  shall  be  liable  to 
any  punishment  for  doing,  or  conspiring  to  do,  any 
act  on  the  ground  that  such  act  restrains,  or  tends 
to  restrain,  the  free  course  of  trade,  unless  such  act 
is  one  above  specified,  and  done  with  the  object  of 
coercing   as   above   mentioned.      Oftences   under 


STRIKES  AND   BOVrOTTS  103 

this  act  are  to  l^e  punished  under  the  summary 
jurisdiction  acts  (11  and  12  Victoria,  Chap.  43). 

And,  on  the  same  day  was  passed  Chapter  31, 
the  Trades- Union  Act,  which  provided  that  the 
purposes  of  any  trades-union  shall  not,  by  reason 
merely  that  they  are  in  restraint  of  trade,  be 
deemed  unlawful  so  as  to  render  any  member  li- 
able to  criminal  prosecution  for  conspiracy  or  oth- 
erwise, or  so  as  to  render  void  any  agreement  or 
trust,  but  also  providing  that  nothing  in  this  act 
should  enable  any  court  to  entertain  jurisdiction 
of  legal  proceedings  instituted  to  enforce  or  recov- 
er damages  for  the  breach  of  : 

(i)  Agreements  between  members  of  a  trades- 
union  as  such,  concerning  the  conditions  on 
which  they  should,  or  should  not,  sell  goods, 
transact  business,  employ,  or  be  employed  ;  or, 
(2)  for  the  payment  of  any  sujjscription  or  pen- 
alty to  a  trades-union  ;  or,  (3)  for  the  applica- 
tion of  the  funds  of  a  trades-union  to  provide  ben- 
efits to  members,  or  lo  furnish  contributions  to 
outside  laborers  or  enijjloyers,  or  to  discharge  any 
fine  imposed  by  court ;  or.  (4)  any  agreement 
made  between  one  trades-union  and  another  :  or, 
(5)  any  bond  to  secure  the  jjerformance  of  any  of 
these  four  classes  of  agreements.  But  nothing  in 
this  section  shall  he  deemed  to  constitute  any 
of  the  above-mentioned  agreements  unlawful. 

The  practical  result  of  this  will  ai>i)ear  to  l)e  to 


104        LABOR  IN   ITS  RELATIONS  TO  LAW 

allow  trades-unions,  and  the  members  thereof,  to 
make  such  agreements,  but  to  leave  them  to  their 
own  remedies  in  case  they  are  broken  ;  which,  in- 
deed, are  doubtless  quite  adequate. 

The  rest  of  the  act  provides  generally  for  the 
incorporation  of  trades-unions,  their  government, 
and  their  powers  in  holding  property  ;  for  their 
registration,  rules,  and  annual  reports. 

The  English  Statute. 

Now,  the  first  thing  that  happened  under  this 
new  act  was  the  case  of  Queen  vs.  Bunn  (12  Cox 
C.  C,  316),  which  is  the  leading  English  au- 
thority on  the  whole  subject,  as  well  as  the  latest. 
This  was  a  case  where  servants  of  a  gas  company, 
working  under  contract  of  service,  agreed  to- 
gether to  quit  the  service  of  their  employers,  with- 
out notice  and  in  breach  of  their  contracts  ;  and, 
as  the  Masters  and  Servants  Act  of  1867  made  the 
breaking  of  a  definite  contract  by  either  side  a 
minor  penal  offence,  the  court,  in  spite  of  the  new 
statute,  declared  that,  being  a  combination  to  bring 
about  a  breach  of  contract,  the  act  did  not  apply. 
Thereupon  the  Act  of  1875  (38  and  39  Vict.,  Ch. 
86),  concerning  conspiracy,  was  passed,  which 
was  the  last  word  upon  the  subject  in  England,  and 
was  clearly  meant  to  meet  this  case.  It  declares 
that  an  agreement  or  combination  of  two  or  more 
persons   to  do.  or  procure  to  be  done,  any  act  in 


STRIKES  AND   BOYCOTTS  105 

contemplation  or  furtherance  of  a  trade  dispute  be- 
tween employers  and  workmen,  shall  not  be  in- 
dictable as  a  conspiracy,  if  such  act  committed  by 
one  person  would  not  be  punishable  as  a  crime. 
In  other  words,  the  English  Parliament  have  gone 
to  the  length  of  wiping  out  the  whole  doctrine  of 
conspiracy,  and  the  act  is  so  radical  that  I  do  not 
see  how  (except  in  the  cases  specially  excepted  by 
the  act  itself,  such  as  riot  or  unlawful  assembly, 
or  strikes  by  persons  in  breach  of  a  contract  of  ser- 
vice where  such  breach  involves  probable  injury 
to  life  or  property)  there  can  be  any  further  ques- 
tion before  the  English  courts  of  a  criminal  trial  of 
any  person  in  a  dispute  between  labor  and  capital, 
when  the  person  would  not  have  been  triable  had 
there  been  no  such  thing  as  labor  and  capital  in 
the  world.  Whether  such  a  statute  would  be  even 
constitutional  in  this  country  may  be  questionable. 
It  is  the  clearest  kind  of  class  legislation. 

The  Parnell  Case. 

For  instance,  the  English  courts  still  hold,  as 
they  did  in  Mr.  Parncll's  case,  that  a  combination 
to  incite  tenants  not  to  pay  rent  is  a  conspiracy, 
and  the  indictment  against  Mr.  Parnell  defined 
the  word  "  boycott "  in  this  case,  by  which  means 
the  combination  not  to  pay  rent  was  brought  about, 
in  the  following  words  :  "  Threatening  to  cut  off 
from  all  social  intercourse  and  communion,  inter- 


io6        LABOR  IN   ITS  RELATIONS  TO  LAW 

course  and  dealings  in  the  way  of  business,  and  to 
shun  as  if  affected  Avith  a  malignant  disease,  and 
hold  up  to  public  hatred  and  contempt,  and  sub- 
ject to  annoyance  anci  injury  and  loss,  in  the  pur- 
suit of  his  lawful  occupation  and  industry,  any 
tenant  who  paid  his  rent,"  etc.  Whether,  by 
statute,  you  can  exempt  capitalists  and  laborers  in 
an  industrial  dispute  from  liability  for  a  thing 
M'hich  is  criminal  in  a  dispute  between  landlords 
and  tenants,  without,  in  this  country,  enacting 
unconstitutional  class  legislation,  may  fairly  be 
questioned.  Under  the  decisions  of  the  Western 
and  Southern  States  you  clearly  cannot ;  and  I 
may  say  that  it  is  probable  that  only  in  Massa- 
chusetts and  a  few  other  States  would  such  a  statute 
as  the  English  statute  now  be  constitutional. 

American  Statutes. 

We  have,  indeed,  many  statutes  on  the  subject, 
but  they  do  not  go  so  far  as  this.  Thus,  in  Penn- 
sylvania, any  laborers  acting  either  as  individuals, 
or  as  members  of  a  union,  may  refuse  to  work  for 
any  person  whenever  in  their  opinion  the  wages 
paid  them  are  insufficient,  or  the  treatment  offen- 
sive, or  when  continued  labor  by  them  would  be 
contrary  to  the  rules  of  any  union,  and  will  not 
be  subject  to  prosecution  for  criminal  conspiracy 
in  so  doing.  In  New  Jersey,  persons  lawfully  and 
peaceably   persuading,    advising,   or  encouraging 


STRIKES  AND  BOYCOTTS  107 

other  persons  to  enter  into  any  combination  for  or 
against  leaving,  or  entering  into,  the  employment 
of  other  persons,  are  declared  not  guilty  of  criminal 
conspiracy.  And  the  same  law  substanti-ally  ex- 
ists in  Colorado.  So,  in  New  York  and  Minnesota, 
the  orderly  and  peaceably  assembling,  or  co-opera- 
tion, of  persons  employed  in  any  calling,  trade,  or 
handicraft,  for  the  puri)Ose  of  obtaining  an  advance 
in  the  rate  of  wages,  is  not  a  conspiracy  ;  and  Min- 
nesota has  gone  nearly  the  full  length  of  the  Eng- 
lish statute,  except  that  they  have  avoided  the  ob- 
jection of  class  legislation,  by  jiroviding  that  no 
agreement  of  anybody,  except  to  commit  a  felony, 
arson,  or  burglary,  amounts  to  a  conspiracy,  unless 
some  act  besides  such  agreement  be  done  to  effect 
this  object  by  one  of  the  i)arties.  This,  you  will 
note,  is  not  quite  the  length  of  the  English  stat- 
ute, because  it  does  not  wipe  out  the  law  of  con- 
spiracy, provided  only  some  overt  act  be  com- 
mitted ;  and  this  is  the  law  of  the  United  States 
act  against  trusts,  which  I  am  coming  to  presently. 
But  the  new  codes  of  North  Dakota  and  Oklahoma 
do  expressly  rei)eal  the  common  law  of  conspiracy. 
Maryland,  finally — and  I  should  have  noted  this 
before — has  adopted  the  full  English  statute  by  an 
act  of  1888,  and  like  it  provides  that  nothing 
in  the  statute  shall  affect  the  law  relating  to  riot, 
unlawful  a.ssembly,  Ijreach  of  the  i)eace,  or  any 
offence  against  any  person  or  against  ])roperty  ; 


loS        LABOR  IN   ITS  RELATIONS  TO  LAW 

but  the  exception  is  probably  unimportant,  as  such 
would  be  the  implication  anyhow.  So  far  .as  I 
know  the  constitutionality  of  this  statute  has  not 
yet  been  decided  in  Maryland. 

But  now,  on  the  other  hand,  we  find  the  follow- 
ing statutes  in  this  country,  which  go  the  other 
way.  Thus,  by  express  act  of  Oregon  and  Florida, 
it  is  a  criminal  offence  to  conspire  for  the  purpose 
of  preventing  any  person  from  procuring  work,  or 
for  the  purpose  of  procuring  the  discharge  of  any 
workman,  and,  in  like  manner — these  statutes,  by 
the  way,  are  universally  fair  to  both  sides — it  is 
forbidden  for  the  employer  to  attempt  to  prevent 
any  person  from  obtaining  employment  whom  he 
has  discharged.  In  this  connection  I  would  add 
that  many  States  already  have  adopted,  and  all 
the  States  are  rapidly  adopting,  statutes  against 
black-listing  ;  that  is,  against  the  attempt  of  an 
employer  who  has  discharged  a  workman  for  a 
trade  dispute,  to  prevent  his  getting  work  with  any 
other  employer.  In  Michigan,  any  two  or  more 
persons  who  shall  combine  for  the  purpose  of  wil- 
fully or  maliciously  injuring  another  in  his  reputa- 
tion, trade,  or  profession,  by  any  means,  or  for  the 
purpose  of  maliciously  compelling  another  to  do, 
or  perform,  any  act  against  his  will,  or  prevent 
him  from  doing  any  lawful  act,  are  guilty  of  crim- 
inal conspiracy.  This  is  an  interesting  statute, 
fur,  as    you    will    see,  it    expressly   re-enacts  the 


STRIKES  AND   BOYCOTTS  109 

whole  common  law  of  conspiracy  and  constitu- 
tional right  to  freedom  of  contract.  So,  in  Illi- 
nois, if  any  two  or  more  persons  combine  for  the 
purpose  of  depriving  the  possessor  of  property 
of  its  lawful  use,  or  of  preventing,  by  threats  or 
any  unlawful  means,  any  person  from  being  em- 
ployed by,  or  obtaining  emi)loyment  from,  such 
possessor  of  property  upon  such  terms  as  the  party 
concerned  may  agree  upon,  the  persons  offending 
may  be  fined  or  sent  to  prison  for  six  months  ; 
and,  also,  if  they  conspire,  or  the  officers  of  any  so- 
ciety or  corporation  shall  issue  any  circular  as  to 
the  government  of  or  instruction  to  its  members, 
or  any  other  persons  or  companies  for  the  puri)ose 
of  establishing  a  boycott  or  a  black-list,  or  shall 
post  or  distribute  any  written  notices  with  intent 
to  injure  the  i)erson,  character,  business,  employ- 
ment, or  property  of  another,  or  to  do  any  illegal 
act  in  restraint  of  trade,  or  injurious  to  health, 
morals,  or  justice,  the  persons  may  be  imprisoncvl. 
for  five  years  and  fined  two  thousand  dollars.  This 
statute,  also,  is  aimed  at  the  employer  and  laborer 
alike.  So,  in  Texas,  an  unlawful  assembly  is  de- 
fined to  be  the  meeting  of  three  or  more  persons 
with  intent  to  aid  each  other  by  violence,  or  in  any 
other  manner,  either  to  commit  an  offence  or  ille- 
gally to  depriveany  person  of  any  right,  or  to  dis- 
turb him  in  the  enjoyment  thereof,  or  to  prevent 
his  pursuing   any  labor,  occupation,  or   employ- 


no        LABOR   IN  ITS  RELATIONS  TO  LAW 

ment,  or  intimidate  any  person  from  following  his 
daily  avocation,  or  to  interfere  in  any  manner 
with  the  labor  or  employment  of  another.  This 
statute  is  broad  enough  certainly,  and  it  is  inter- 
esting as  coming  from  the  State  of  Texas.  There 
are  similar  statutes  in  Georgia  and  Tennessee,  the 
latter  being  expressly  aimed  at  the  threatening  to 
discharge  any  employee  for  trading,  or  not  trad- 
ing, with  any  particular  merchant  or  person  ;  and 
that  of  Georgia  specially  prohibiting  the  hinder- 
ing any  person  from  taking  an  apprentice  to  learn 
a  trade;  and,  finally,  the  Legislature  of  Louisiana, 
by  resolution,  July  12,  1894,  made  a  kind  oi pro- 
niinciamento  condemning  the  efforts  of  foreign 
emissaries  to  disturb  the  public  peace  by  foment- 
ing discord  between  employers  and  employees  at 
a  time  "  when  there  is  no  cause  for  discontent  and 
no  grievances  to  be  redressed,"  and  commended 
the  railroad  operatives  of  the  State  for  repulsing 
the  overtures  of  such  agitators  and  refusing  to  join 
in  the  Chicago  strike. 

So  much  for  the  general  view  our  legislatures 
are  taking  of  boycotts ;  and,  further,  as  to  the  spe- 
cific acts  declared  illegal,  we  must  note  that  Rhode 
Island  and  Maine  forbid  the  wilfully  obstructing 
the  use  of  the  property  of  another,  or  obstructing 
another  in  the  prosecution  of  his  lawful  business  or 
pursuits.  Connecticut  forbids  the  persistently  fol- 
lowing a  person  in  a  disorderly  manner,  or  the 


STRIKES  AND  BOYCOTTS  iii 

threatening  to  injure  his  property,  with  intent  to 
intimidate;  while  New  Hampshire  makes  it  illegal 
to  insult  or  call  offensive  names  to  persons  pass- 
ing to,  from,  or  about  their  lawful  employment  or 
business. 

Lock-outs. 

The  lock-out  is  the  obverse  of  the  strike,  and 
both  are  legal ;  the  black-list  is  the  obverse  of  the 
boycott,  and  both  are  illegal.  Trades-unions  and 
combinations  of  employers  or  employees  are  also 
legal,  and  become  illegal  only  when  falling  under 
the  prohibition  of  such  statutes  as  I  have  read,  or 
when  aimed  at  the  injury  of  the  public,  or  a  specif- 
ic person,  or  class  of  persons,  other  than  the  party 
to  the  dispute,  or  at  the  party  to  the  dispute  him- 
self when  the  immediate  intent  is  to  injure,  even 
though  the  ultimate  motive  be  to  benefit  the  mem- 
bers of  the  combination.  Such  is  the  American 
law  of  the  strike  and  l)oycott  as  it  exists  to-day. 
It  is  a  law  essentially  moral.  If  those  of  you  who 
are  laborers  feel  any  doubt  as  to  whether  ever 
any  proposed  action  of  your  men  falls  under  the 
above  definition  so  as  to  be  illegal,  the  best  answer 
I  can  give  is,  Ask  your  consciences.  So  stands 
the  law. 

Discharge  of  Union  Men. 

We  have  two  most  interesting  points  left  to  dis- 
cuss— the  one.  that  of  the  emplo>niient  of  union 


112        LABOR  IN  ITS  RELATIONS  TO  LAW 

men  already  mentioned,  the  other  that  of  the  em- 
ployment of  Pinkerton  men,  or  other  mercenaries, 
to  jjrotect  the  employer  or  his  property.  As  to 
the  first,  I  think  I  have  already  said  that  there  are 
in  many  States  statutes  forbidding  the  employer 
to  refuse  to  employ  union  men.  Are  such  statutes 
constitutional  ?  I  can  only  tell  you  that  a  minor 
court  in  Ohio  has  held  they  are,  while  the  Supreme 
Court  of  the  State  of  Missouri,  in  a  decision  filed 
only  on  the  i8th  of  last  June,  has  squarely  declared 
they  are  not.  The  Ohio  case  is  probably  of  little  au- 
thority. An  inferior  court  rarely  declares  a  law  un- 
constitutional, and  the  judge  gives  no  reasons  ;  but 
the  Missouri  case  is  well  considered  and  of  great  au- 
thority. And,  in  connection  with  this,  the  Circuit 
Court  of  the  United  States  in  the  Reading  Rail- 
road case,  where  the  question  came  up  whether  the 
receiver  of  a  Federal  court  had  the  right  to  en- 
force a  rule  requiring  that  only  non-union  men 
should  be  employed,  although  the  then  Attorney- 
General  of  the  United  States,  Mr.  Olney,  wrote  a 
letter,  stating  the  view  of  the  legal  department  of  the 
government,  in  whose  charge  the  Reading  Railroad 
then  was,  the  Court  refused  to  annul  the  regulation 
discriminating  against  union  men.  There  the 
matter  rests.  The  statute  exists  in  Massachusetts, 
but  has,  I  believe,  not  yet  been  passed  on  there 
by  the  Supreme  Court.  It  certainly  would  seem 
that  the  Missouri  court  was  right,  and  that  if  em- 


STRIKES   AND   BOYCOTTS  113 

ployers  of  labor  are  to  come  to  employ  only  mem- 
bers of  trades-unions,  it  would  be  better  and  more 
in  consonance  with  the  principles  of  a  free  govern- 
ment to  them,  to  be  persuaded,  not  coerced,  by 
the  trades-unions  themselves,  rather  than  have  the 
government  undertake  it  by  law.  The  fact  that 
coercion  is  illegal  is  just  why  the  union  want  a  stat- 
ute. But  if  laborers  are  willing  individually  to  leave 
work  when  non-union  men  are  employed,  they 
will  soon  get  their  wish.  Where,  however,  a  la- 
borer is  under  contract,  it  is  of  course  constitutional 
for  a  statute  to  forbid  the  employer  from  discharg- 
ing him  because  he  joins  a  labor-union,  and  the 
courts  would,  doubtless,  hold  that  this  was  not  .suffi- 
cient ground  of  discharge  in  the  absence  of  any 
statute.  This,  therefore,  is  a  case  where  we  begin 
to  see  the  advantages  of  a  definite  contract  to  the 
laborer  himself. 

The  Future  of  the  Boycott. 

Closing  this  subject,  I  have  reserved  one  most 
interesting  case  for  the  last,  and  a  case  which, 
though  decided  in  that  instance  in  favor  of  the 
employer,  holds  open,  as  1  believe,  a  new  pros- 
pect of  legal  remedy  to  the  laborer.  The  case  is 
that  of  Cote  vs.  Murphy,  decided  in  Pennsylvania 
in  1S93.  This  was  a  case  where  the  workmen 
engaged  in  building-trades  had  entered  into  a  law- 
ful combination  to  advance  wages  by  reducing  the 
8 


114        LABOR   IN   ITS   RELATIONS  TO   LAW 

hours  of  labor.  Lawful,  that  is,  not  only  as  I  be- 
lieve, by  the  common  law,  but  by  that  statute  of 
Pennsylvania  to  which  I  have  referred.  The  de- 
fendants were  members  of  an  association  of  em- 
ployers which,  by  a  combination  not  so  made  law- 
ful by  the  statute,  because  it  was  a  combination  of 
employers,  agreed  among  themselves  not  to  sell 
material  to  contractors  who  conceded  the  advance 
of  wages,  and  induced  other  dealers  not  to  furnish 
such  contractors  with  materials.  A  certain  builder 
— that  is,  a  capitalist  who  sold  materials  to  the 
employers  of  labor — who  had  met  the  demands  of 
the  strikers,  brought  suit  against  the  combining 
employers  for  refusing  to  sell  him  material,  so  that 
he  was  not  able  to  procure  all  the  building  mate- 
rial he  desired.  Here  was  a  case  where  there  was 
a  combination  of  laborers,  hgal  by  statute,  a  com- 
bination of  employers,  not  legal  by  statute,  and  a 
capitalist  suing  the  employers'  combination  be- 
cause they  boycotted  him  for  being  in  league  with 
the  striking  laborers.  The  court  held,  in  a  most 
elaborate  opinion,  first,  that  they  would  not  de- 
cide whether  the  Pennsylvania  statute  exempting 
employees  from  the  penalties  of  unlawful  combi- 
nation was  unconstitutional  as  being  class  legisla- 
tion, or  whether  the  scope  of  the  statute  should  be 
so  enlarged  by  its  express  words  as  to  include  with- 
in its  protection  all  those  interested  in  the  same 
subject  of  legislation,  that  is,  employers  as  well  as 


STRIKES  AND   BOYCOTTS  115 

laborers.  They  so  found  it  unnecessary  to  pass  on 
the  constitutionality  of  the  statute,  because  they 
said  the  strikers  having  combined  against  the 
employers,  the  employers  had  a  legal  right  to  com- 
bine to  resist  them  ;  that  the  elements  of  an  un- 
lawful combination,  the  intent  to  restrain  trade 
for  greed  of  profit  to  themselves,  or  the  intent  to 
do  harm  toward  the  strikers  specifically,  were  ab- 
sent, but  the  combination  of  employers  was  merely 
done  to  resist  a  combination  of  employees,  and 
therefore  the  plaintiff  could  not  recover  for  being 
boycotted. 

Now,  suppose  we  turn  this  reasoning  the  other 
way.  Suppose  all  employers  combine  to  regulate 
the  prices  of  wages.  Suppose,  then,  all  their  em- 
ployees combine  against  such  employers  ;  then,  un- 
der the  decision  of  this  Pennsylvania  case,  you 
will  have  a  justification  of  their  action,  which  may 
even  go  to  the  length  of  sustaining  the  sympa- 
thetic boycott.  At  all  events  it  will  establish  as 
a  legal  principle  that  principle  of  collective  bar- 
gaining between  associations  legally  organized  and 
l)ersonally  responsible  on  both  sides,  which,  as  I 
believe,  holds  the  future  of  the  peace  of  labor. 

Pinkerton  Men. 

I  find  I  have  forgotten  the  Pinkerton  men. 
Well,  a  few  States  have  begun  to  pass  laws  making 
their  employment  .1  penal  offence  ;   but  a  man  has 


Ii6        LABOR  IN   ITS  RELATIONS  TO  LAW 

a  constitutional  right  to  protect  his  own  property. 
Has  he  not  a  constitutional  right  to  pay  others  to 
do  so  ?  Remember,  he  runs  great  risks  in  doing 
so,  for  the  moment  any  one  of  his  Pinkerton  men 
transgresses  his  rights  of  mere  self-defence,  every 
employer  may  become  liable  for  damages,  or  even 
criminally. 

The  two  statutes  so  far  passed  against  them  are 
in  Missouri  and  Wyoming.  The  Missouri  statute 
declares  it  unlawful  for  any  person,  etc.,  to  bring, 
or  import,  into  the  State  any  person  or  body  of 
persons  for  the  purpose  of  discharging  the  duties 
usually  devolving  upon  police  ofificers  or  deputy- 
sheriffs  in  the  protection  of  property,  and  no  sher- 
iff shall  appoint  a  deputy  who  is  not  a  bona-fide 
resident  of  this  State. 

Now,  there  is  no  constitutional  objection  to  this 
statute,  except  that  which  arises  from  the  general 
rights  of  United  States  citizens.  The  prohibition, 
that  is,  is  not  against  employing  Pinkerton  men, 
but  against  employing  Pinkerton  men  who  are 
not  citizens  of  Missouri. 

The  constitution  of  Wyoming  provides  that  no 
armed  force  or  detective  agency,  or  body  of  men, 
shall  ever  be  brought  into  the  State  for  the  sup- 
pression of  domestic  violence,  except  upon  the  ap- 
plication of  the  Legislature,  or  the  executive  when 
the  Legislature  cannot  be  convened.  It  does  not 
say  who  is  not  to  bring  them  in,  and  by  its  terms 


STRIKES  AND  BOYCOTTS  117 

would  seem  tu  apply  even  tu  the  national  govern- 
ment. If  so,  it  is  in  conflict  with  the  Federal 
Constitution  ;  it  would  have  precluded  President 
Cleveland's  action  in  the  Chicago  riots.  The 
employment  of  Pinkerton  men  is,  doubtless,  a 
great  evil,  and  has  seemed  to  many  students  of 
the  American  system  to  be  the  most  sinister 
development  that  has  happened  in  recent  years 
of  the  republic.  But  the  remedy  would  seem 
rather  to  make  their  employment  unnecessary, 
by  the  States  themselves  protecting  all  classes  of 
persons  in  the  enjoyment  of  their  constitutional 
rights,  a  republican  government,  and  the  law  of 
the  land. 


IV 

FORECAST   OF   THE    FUTURE 

We  may  now  come  to  consider  the  future  of  the 
labor  relation,  the  remedies  and  resources  of  both 
sides,  but  particularly  of  labor,  in  what  has  been 
called  the  warfare  between  labor  and  capital,  or  in 
bettering  its  condition  without  warfare.  The 
latter  is  the  more  congenial  view  of  the  subject, 
for,  as  one  of  tlie  objects  of  all  civilized  govern- 
ment is  to  prevent  warfare  and  violence,  so  we 
may  hope  that  the  object  of  a  higher  civilization 
will  be  to  prevent  even  that  kind  of  warfare  which 
consists  in  opposition  and  animosity  as  well  as 
physical  violence. 

Labor  Injunctions. 

The  side  adverse  to  labor  we  may  consider  very 
briefly.  The  most  notable  development  of  recent 
years  is  the  tendency,  both  on  the  part  of  the 
public  and  employers,  to  resort  to  the  peculiar 
process  of  courts  of  equity  to  enforce  what  they 
deem  proper  conduct  on  the  part  of  the  employees. 
I  wish  I  had  time  to  go  into  this  matter  here  at 


FORECAST  OF  THE   FUTURE  119 

length.'  The  subject  may  be  summari/ed  in  the 
following  statements  :  Our  courts  of  equity  to- 
day represent  the  old  power  of  the  king  in  compel- 
ling the  peace  of  the  realm,  and  in  ordering  his 
subjects  to  do  what  the  chancellor  deemed  the 
right  thing  among  themselves.  Law,  as  distin- 
guished from  equity,  will  never  interfere  among 
individuals  or  even  on  behalf  of  the  State,  to  en- 
force a  contract,  to  make  a  man,  or  set  of  men, 
do  anything,  and  the  peculiar  power  of  proceeding 
in  ecjuity  rests  largely  on  the  fact  that  the  chancel- 
lor could  order  people  not  only  to  keep  the  peace 
and  abstain  from  violence,  but  to  perform  any 
contract  or  any  obligation  which  the  laws  of  the 
realm  imposed  either  as  toward  other  subjects  or 
toward  the  sovereign.  This  power  of  enforcing 
action,  what  we  call  specific  performance  in  the 
law,  is  a  very  great  one.  It  is  made  effectual  by 
what  is  called  process  of  contempt  ;  that  is,  any 
person  failing  to  perform  the  order  of  tlie  court  of 
chancery  could  be  summarily  imprisoned  by  order 
of  the  judge  without  jury  trial,  and  without  indict- 
ment in  ordinary  form,  until  such  time  as  he 
actually  did  what  the  court  required  him  to  do. 

Recent  Extension  of  Court  Interference. 

Now,  this  special  subject  of  the  courts  of  equity 

has  received  a  great  extension  in  this  country  in 

'  See    Political  Science  Quarterly,  June,   1895  :     "  The 
Modern  Use  of  Injunctions,"  by  F.  J.  Stimson. 


I20        LABOR   IN   ITS  RELATIONS  TO  LAW 

the  last  few  years,  and  that  in  a  very  pecuHar  way. ; 
and  it  is  another  example  of  the  danger  of  passing 
extraordinary  laws  which  interfere  in  an  nnusual 
way  with  the  bills  of  rights;  for,  in  old  times, 
the  English  chancellor,  who  was  the  king's 
right-hand  executive  officer  (and  courts  of  equity 
and  courts  of  chancery  are,  as  you  understand, 
the  same  thing),  in  the  time  of  great  disorder 
which  ensued  upon  the  early  civil  wars  in  Eng- 
land, would  interfere  to  protect  private  citizens 
against  oppression,  to  protect  the  weaker  side 
against  violence,  and  to  compel  all  subjects  to  pre- 
serve the  peace  of  the  kingdom.  He  would,  for 
instance,  order  people,  against  whom  the  writ  was 
claimed,  not  to  commit  riots  or  destruction  of 
property,  nor  to  commit  personal  injuries,  or  even 
crimes,  and  this  summary  jurisdiction,  .say  the  old 
writers,  was  in  those  days  necessary  to  the  peace 
of  the  realm.  But  in  so  far  as  the  jurisdiction 
went  to  prohibit  criminal  offences  and  punish 
offenders  summarily  by  the  order  of  the  chancellor, 
it  was  always  extraordinary  ;  shared  also  by  the 
notorious  court  of  Star  Chamber,  it  led  to  great 
abuses,  as  by  it  obnoxious  persons,  or  persons  out 
of  favor  with  the  ruling  party,  could  be  arrested, 
tried,  and  punished,  without  any  of  the  ordinary 
safe-guards  of  warrant,  arrest,  indictment,  jury  trial, 
obtaining  evidence,  and  fixed  rules  of  punishment 
which  the  English  Constitution  required.      There- 


FORECAST  OF  THE   FUTURE  121 

fore,  this  criminal  jurisdiction  of  the  court  of 
chancery  fell  into  disfavor,  and,  finally,  into  disuse. 
It  was  entirely  gone  by  the  time  of  the  Revolution, 
if  not  by  the  time  of  Queen  Elizabeth,  and  has 
never,  in  England,  been  revived  since.  The  only 
part  of  the  old  equity  jurisdiction  which  was  left 
was  that  concerning,  specifically,  property  rights; 
that  is,  where  an  injury  to  property  was  appre- 
hended, for  wliich  a  suit  at  law  for  damages  would 
be  no  remedy,  or  where  a  man  refused  to  perform 
a  property  contract  for  breach  of  which  the  other 
party  had  no  equity  remedy  by  damages  ;  in  these 
cases  only  could  this  extraordinary  ])o\vcr  of  chan- 
cery still  be  invoked.  Constantly  from  that  time 
until  now,  the  English  court  of  chancery  h;ts  re- 
fused to  issue  an  injunction  .solely  against  commit- 
ting a  crime ;  and  during  the  same  period  grew  up 
the  doctrine  that  it  would  not  enforce  contracts  for 
personal  labor.  This  is  the  important  matter  I 
referred  to  in  the  last  lecture — that  you  may  obtain 
the  actual  performance  of  a  contract  by  bringing 
into  chancery  the  party  refusing  to  perform  it  in 
all  cases  of  property  right,  in  all  cases  except 
where  the  contract  is  merely  for  personal  service. 
These  two  principles,  that  chancery  will  not  en- 
join against  criminal  offences,  and  will  not  en- 
force contracts  for  labor  and  personal  services,  are 
of  the  very  greatest  importance. 

We  started  our  courts  of  chancery  in  this  coun- 


122        LABOR  IN   ITS  RELATIONS  TO  LAW 

try,  giving  them  the  same  jurisdiction  they  had 
in  England.  In  fact  the  Federal  law  expressly 
states  that  they  shall  have  such  jurisdiction  as  the 
English  courts  of  chancery  had  in  Lord  Eldon's 
time,  about  the  beginning  of  this  century.  There- 
fore, as  I  hold,  our  courts  of  equity  too  may  not 
interfere  actively  to  prevent  or  punish  a  criminal 
offence  as  such,  and  may  not  enforce  a  contract  of 
labor  or  personal  service.  But  the  property  right 
remained;  that  is,  you  could  go  into  chancery  to 
prevent  a  man,  or  set  of  men,  from  committing 
a  definite  injury  to  property,  and  particularly 
when  the  injury  was  of  such  sort,  or  consisted  in 
such  an  indefinite  series  of  injurious  acts  by  an  in- 
definite number  of  people,  that  the  common-law 
remedy  for  damages  was  not  adequate.  Now,  this 
is  a  valuable  jurisdiction,  and,  so  far,  it  is  well 
enough.  But  in  18S7  was  passed  the  United 
States  law  regulating  interstate  commerce,  and  in 
1890  the  United  States  law  against  trusts.  These 
extraordinary  statutes  were  meant  to  be  in  the  in- 
terest of  the  people.  They  attempted  both  to 
prevent  combinations  in  restraint  of  trade,  to 
raise  prices,  etc.,  and  combinations  to  interfere 
with  interstate  commerce.  But  the  extraordinary 
feature  of  them  was  certain  sections  which  gave, 
as  it  were,  a  certain  property  right  to  the  United 
States  in  subjects  of  interstate  commerce,  and  ex- 
pres.sly  authorized  the  United  States  to  go  into  a 


FOKIiCAST  OF  TUB   FUTURE  133 

court  of  chancery  and  i:)roceed,  by  injunction, 
against  men  who  interfered  with  trade  between 
the  States.  Now,  that  part  of  the  act  whicli  was 
aimed  to  protect  the  public  mainly,  failed.  As 
you  know,  the  reorganized  sugar  trust  escaped  the 
anti-trust  law  entirely  for  the  reason  that  being 
now  a  cori)oration  established  in  one  or  more 
States  merely  for  the  purpose  of  refining  sugar,  the 
Supreme  Court  of  the  United  States  held  that 
they  could  not  assume  that  the  sugar  they  made 
was  to  be  the  subject  of  interstate  commerce,  and 
therefore  the  sugar  trust  did  not  come  under  the 
statutes.  But,  on  the  other  hand,  in  the  great 
business  of  railways,  and  also  of  stevedores,  sail- 
ors, wharf-laborers,  and  certain  other  cla.sses  of 
lal)orers  who  were  employed  in  handling  goods 
designed  for  shipment  to  another  State,  these  stat- 
utes gave  express  power,  and,  in  fact,  directed  the 
United  States,  through  its  Attorney-General  and 
District  Attornej-s,  to  interfere  actively  by  the 
strong  arm  of  a  court  of  chancery,  and  restrain 
any  men,  or  body  of  men, who  interfered  with  this, 
as  it  were,  property  right.  Before  that  the  gov- 
ernment could,  at  most,  only  have  been  held  to 
have  such  property  right  in  the  United  States 
mails ;  but  the  practical  effect — and  I  am  not  now 
speaking  technically — of  these  statutes  was  to  e.\- 
tend  such  property  right  to  any  articles  which 
were,  or  were  intended,  to  become  the  subjects  of 


124        LABOR  IN   ITS  RELATIONS  TO  LAW 

interstate  commerce.  This  actually  put  the  whole 
transportation  interest  of  the  country  under  direct 
charge  of  the  government,  Avith  the  mandate  to 
the  government  to  interfere  and  see  that  no 
combination  was  made  against  such  transporta- 
tion. 

As  a  result  of  this,  such  combinations,  strikes, 
or  boycotts  became  an  unlawful  conspiracy ;  for 
that  was  now  unlawful  which,  before  the  statute, 
had  not  been ;  and  under  the  definition  of  "  con- 
spiracy "  I  gave  you  in  my  last  lecture,  you  will 
easily  see  that  all  such  combinations  fell  at  once 
under  what  we  called  the  first  branch  of  con- 
spiracy;  hence,  tlie  omnibus  injunctions  levelled 
against  not  only  the  actual  offender,  Debs,  or 
others,  but  against  any  men  or  class  of  men, 
though  unnamed  in  the  bill  and  unknown,  who 
might  after  interfere  with  such  transportation  ;  and 
hence,  under  the  contempt  process,  they  were  ar- 
rested by  United  States  Marshals,  brought  into 
court,  and  imprisoned  without  jury  trial,  and  in 
some  cases  long  after  the  danger  or  emergency 
which  justified  the  injunction  had  pa.ssed. 

Now,  under  the  two  laws  I  have  mentioned, 
there  is  no  way  of  avoiding  this  except  by  passing 
new  laws.  As  the  Supreme  Court  has  just  held, 
the  sole  question  is  one  of  jurisdiction  ;  and  if  the 
persons  proceeded  against  were  properly  before  a 
court  of  equity,  and  the  court  had  jurisdiction  of 


FORECAST  OF  THE   FUTURE  125 

the  subject-matter,  the  power  to  punish  them  by 
contempt  follows  as  a  matter  of  course. 

Objections  to  Equity  Government. 

There  seem  to  me  to  be  two  objections  to  this  ; 
I  mean  objections  on  broad  ground  of  expediency 
and  right,  and  the  future  safetyof  the  government, 
not,  of  course,  technical  objections  of  law.  One 
is,  that  as  we  now  stand,  any  laborer,  or  class  of 
laborers,  though  he  has  received  no  notice  of  a 
suit  in  court,  may  find,  any  day,  that  an  ordinary 
trespass  or  neglect  of  duty  made  by  him  will  sub- 
ject him  to  a  criminal  punishment  without  in- 
dictment, jury  trial,  or  certain  laws  defining  the 
extent  of  the  punishment ;  he  may  possibly  find 
himself  in  jail  without  a  trial,  though  he  him- 
self has  committed  no  overt  act,  but  merely  by 
being  a  member  of  a  trades-union  or  combina- 
tion, some  of  whom  have  committed  an  overt  act 
of  trespass,  or,  j^erhaps,  even  solely  because  the  pur- 
pose of  such  combination  or  union  has  been  by  a 
strike  or  boycott  directly,  or  indirectly,  to  interfere 
with  transportation.  This  is  one  objection.  The 
other  rests  on  broader  ground  still.  As  you  know, 
our  Constitution  provides  that  the  executive  and 
jndicial  branches  of  government  shall  be  forever 
distinct.  This  is  not  only  because  the  judicial 
branch  is  in  no  sense  competent  to  perform  e.vecu- 
tive  functions,  but,  because  from  the  very  nature  of 


126        LABOR  IN   ITS  RELATIONS  TO  LAW 

their  judicial  duties,  they  ought  not  to  become  ac- 
tive participants  in  the  important  events  which 
they  have  to  judge  ;  and  there  is  one  other  thing 
still  which  increases  this  new  executive  power  very 
much  more — that  is  the  peculiar  process  of  putting 
corporations,  railroads  and  so  on,  in  the  hands  of 
receivers  when  they  cannot  pay  their  debts.  As 
you  know,  in  modern  times  whenever  a  corpora- 
tion finds  it  cannot  pay  its  debts,  it  rushes  into  a 
court  of  equity  and  gets  some  person — usually  one 
of  its  own  officers — appointed  receiver,  and  there- 
upon all  suits  and  claims  against  the  company  are 
suspended.  Corporations  do  this  for  very  much 
the  same  reasons,  and  with  very  much  the  same  re- 
sults, as  when  an  individual  sought  the  sanctuary 
of  a  church  in  mediaeval  times.  In  the  sanctuary 
of  the  receivership  the  corporation  cannot  be 
touched.  But  the  labor  result  of  it  is  purely  for- 
tuitous, one  of  those  accidental  consequences  which 
shows  again  that  you  never  know  Avhere  the  result 
of  an  extraordinary  law  or  remedy  is  going  to  end. 
The  technical  doctrine  of  a  court  of  equity  is  that 
the  receiver  is  the  officer  of  the  court.  As  such,  an 
interference  with  a  railroad  in  his  hands  is  an  in- 
terference with  the  order  of  the  court  of  equity, 
which,  at  once  justifies  all  this  injunction  and  con- 
tempt process  of  which  I  have  spoken.  During 
the  last  few  yeai^s  a  vast  proportion  of  our  railroads 
— possibly  one-third  in  mileage — went    into  the 


FORECAST  OF  THE   FUTURE  127 

hands  of  receivers,  that  is,  into  the  hands  of  the 
courts.  They  were  run  by  the  judicial  branch  of 
government.  Any  interference  with  their  running 
became  a  contempt  of  court,  and,  consequently, 
a  strike  npon  a  railroad  in  the  hands  of  a  receiver 
might  subject  the  strikers  to  this  extraordinary 
punishment,  when  a  strike  against  an  ordinary 
railroad  would  not  have  done  so.  This  receiver- 
ship process,  with  the  Interstate  Commerce  and 
the  Anti-Trust  Laws,  are  the  principal  causes  of 
this  inniiense  extension  of  the  function  of  the 
Federal  courts  in  the  last  few  years,  so  that  they 
have  practically  found  themselves  part  of  the  execu- 
tive of  the  government  ;  and  here,  I  think,  is  the 
greatest  danger  of  all.  Physically  and  morally  our 
courts  ought  not  to  be  required  to  stand  such  a 
strain.  In  fact  their  power  in  so  doing  is  far 
greater  than  that  of  the  executive  itself,  for  the 
reason  that  the  executive  is  subject  to  the  habeas 
corpus  act,  and  the  ordinary  restrictions  of  crimi- 
nal process,  but  the  equity  courts,  although  the 
punishment,  of  course,  is  never  extreme,  are  not. 
They,  or  their  appellate  courts,  must  themselves 
judge  the  propriety  of  their  own  acts.  We  all 
want  order  maintained  throughout  the  country, 
and  most  of  us,  doubtless,  commended  Mr. 
Cleveland  for  his  prompt  and  forcible  action  in 
the  Chicago  strike  ;  Imt  if  such  nction  had  been 
expressly  ba.sed  upon   the  ground   that  the  trans- 


128        LABOR   IN   ITS  RELATIONS  TO  LAW 

portation  of  the  mails  was  being  interfered  with, 
that  riots  and  crimes  were  being  committed  which 
made,  practically,  a  state  of  insurrection,  so  that  the 
republican  form  of  government  in  certain  locali- 
ties was  being  threatened,  rather  than  upon  the 
ground  so  much  less  impressive  to  the  public  mind 
that  certain  equity  processes  of  Federal  courts  were 
not  being  executed  ;  and  then  if  all  the  oflenders, 
whether  arrested  by  troops  or  by  deputy-marshals, 
had  been  brought  before  the  Federal  grand  jury, 
indicted  and  tried  by  a  jury  in  the  ordinary  way, 
I  cannot  but  think  that  the  lesson  to  the  people 
would  have  been  better  given,  and  certain  great 
dangers  in  the  future  avoided ;  for  the  govern- 
ment, and  especially  the  judicial  branch  of  the 
government,  must  not  even  appear  to  take  sides  in 
this  labor  question. 

So  much  for  these  extreme  remedies.  As  to  pri- 
vate employers,  they  may  safely  be  left  to  protect 
themselves  by  the  remedies  now  open  to  them.  It 
does  not  seem  to  me  that  their  side  is  in  any  great 
danger  at  present,  except  perhaps  from  hasty  and 
unusual  legislation,  Avhich  I  have  so  often  spoken 
of  in  these  lectures.  Under  that  growth  of  the 
modern  doctrine,  which  I  have  tried  to  describe, 
they  are  free  to  combine  when  combination  is  rea- 
sonable and  possible,  and  will  doubtless  do  so 
should  it  become  necessary. 


FORECAST  OF  THE  FUTURE       129 

Co-operation. 

Turning  now  to  the  labor  side.  The  first  of  the 
remedies  commonly  suggested  to  us  is  that  of  co- 
operation or  profit-sharing.  I  wish  it  could  be 
said  that  the  progress  of  this  in  the  past  had  been 
such  as  to  justify  a  feeling  that  this  might  be  the 
solution  ;  but  in  the  first  place,  you  must  note  that 
under  the  system  of  the  much-abused  corporation 
it.self,  it  has  always  been  possible  for  the  laborer  to 
become  a  partner  with  capital  in  his  own  employ- 
ment if  he  chooses.  It  is  rather  singular  that  at- 
tention has  been  so  rarely  drawn  to  the  fact  that 
in  any  mill  or  industry  to-day,  for  they  are  nearly 
all  corporations,  it  is  perfectly  possible  for  an  em- 
ployee to  buy  stock,  and  therefore  get  his  share  in 
the  extraordinary  profits,  if  any  there  be.  As  we 
know,  the  laborers  never  take  advantage  of  it. 
Why  do  they  not  ?  Probably  the  answer  must  be 
simply  that  as  capitalists  they  are  discontented 
with  the  ordinary  returns  which  capital  brings  its 
possessor.  It  was  distressing,  the  eagerness  with 
which  the  laboring  cla.sses  rushed  into  the  benefit 
societies  of  a  few  years  ago,  and  distressing  the 
amount  of  hard-earned  savings  they  must  have  lost 
in  these  concerns  simply  because  they  promised  ten 
or  twenty  per  cent.,  or  something  far  above  the 
proper  return  upon  capital.  But  the  fact  is  that 
the  laborer  is  not  induced  to  save  money  for  the 
purpose  of  getting  the  motlest  return  which  mod- 
9 


I30        LABOR  IN  ITS  RELATIONS  TO  LAW 

ern  conditions  allow  to  capital.  This  is  natural 
enough  when  we  consider  the  amount  of  savings 
that  would  be  needed  to  give  a  skilled  laborer,  in 
dividends,  the  same  amount  per  year  for  the  last 
years  of  his  life  that  he  earned  when  in  his  prime, 
'i'he  normal  return  upon  money  put  out  at  interest 
is  probably  not  over  four  per  cent,  when  we  allow 
for  losses ;  but  taking  it  higher  than  this,  regard- 
ing it  as  a  dividend,  it  is  certainly  not  over  five 
per  cent.  Counting  bad  investments  with  good, 
that  man  is  very  fortunate  who  gets  an  average  of 
five  per  cent,  dividends  upon  all  his  stocks.  Now, 
if  I  assume  a  skilled  industrial  laborer  to  make 
^600  a  year  during  the  best  years  of  his  life  in 
wages,  it  requires  an  investment  of  $12,000  to 
realize  that  sum,  which  is  precisely  the  full  wages 
for  twenty  years.  How  can  the  laborer  hope  to 
save  any  such  capital  as  that  ?  We  cannot  blame 
him  for  not  being  attracted  to  scrimp  and  save  for 
many  years  for  the  sake  of  getting  some  trifling 
fifty  or  one  hundred  dollars  yearly  return  as  a  cap- 
italist— too  little  for  a  living,  and  acquired  at  too 
much  sacrifice  to  be  an  inducement  as  pocket- 
money. 

Profit-Sharing. 

There  is  more  hope  in  actual  profit-sharing 
plans,  more  hope,  perhaps,  in  co-operation.  The 
reason   of  this  is  that  here  the  laborer  becomes. 


FORECAST  OF  THE  FUTURE  131 

not  the  ordinary  small  investor  of  capital,  but  an 
actual  i)artner  in  the  possible  extraordinary  profits 
of  his  business.  Forty  years  ago  there  was,  doul^t- 
less,  great  hope  in  this  direction,  and  many  of  our 
States  have  elaborate  statutes  authorizing  co-opera- 
tive and  profit-sharing  corporations  ;  but  they  have 
not  been  taken  advantage  of  so  freipiently  as  we 
could  wish,  and,  moreover,  the  event  shows  that  the 
common  course  of  a  successful  co-operative  cor- 
])oration  is  to  develop  into  an  ordinary  stock  com- 
pany, owned  mainly  by  two  or  three  individuals 
whose  greater  ability  or  greater  acquisitive  powers 
have  enabled  them  to  make  a  success  of  the  busi- 
ness. I  by  no  means  wish  to  dismiss  co-operation 
as  an  idle  dream,  I  only  say  that  I  fear  we  cannot 
yet  call  it  a  panacea  for  labor  troubles. 

True  Demand  of  Unions. 

The  fact  is  that  what  the  laborer  really  wants, 
and  what  the  trades-unions  in  I^ngland  have  at 
last  got  to  the  point  of  admitting  that  he  wants, 
is  not  i^rofits  as  a  capitalist,  but  a  greater  share  of 
the  profits  of  industry  as  jiart  of  his  own  wages. 
This  is  the  plain  Knglish  of  it,  and  this  we  should 
fairly  recognize.  In  other  words,  they  desire  a 
])artncrship  with  capital,  not  in  the  sense  of  being 
capitalists  to  an  infinitesimal  extent  themselves, 
but  that  it  shotild  be  recognized  either  by  fact  or 
by  law  that  labor  and  capital  working  together 


L 


132        LABOR   IN   ITS  RELATIONS  TO  LAW 

are,  in  effect,  partners.  Both  are  to  be  paid  as  part- 
ners out  of  the  output  of  their  industry,  out  of 
the  realized  profits,  not  out  of  any  mythical  wages 
fund  which  represents  only  that  sum  which  will 
support  all  the  persons  in  any  one  year  seeking  la- 
bor in  the  country  at  the  lowest  living  rates. 
Rightly  or  wrongly,  this  is  the  demand  of  labor, 
and  it  is  for  the  future  to  determine  how  far  it  can 
be  safely  and  fairly  recognized.  Perhaps,  at  pres- 
ent, the  trades-unions  have  only  got  to  a  point  of 
simply  exacting  increased  wages,  without  regard  to 
the  industry.  Mr.  Spyers,  who  wrote  the  last 
English  book  on  the  labor  question,  a  summary  of 
the  results  of  the  Royal  Commission  of  Labor  of 
1893,  tells  us,  "It  is  clear  that  the  natural  attitude 
of  trades-unions  toward  profit-sharing  is  one  of 
hostility.  Being,  essentially,  organizations  for  ap- 
preciating wages  at  the  expense  of  profits,  they 
could  hardly  be  expected  to  welcome  with  cor- 
diality a  scheme  which  gives  the  workman  an  in- 
terest in  the  integrity  of  the  profit-fund."  But, 
whichever  labor  desires,  be  it  called  increased 
wages  or  a  share  in  the  profits,  how  is  it  to  be 
brought  about  ? 

"  Collective  Bargaining." 

To  this  we  answer,  by  combination  of  labor 
which  will  enable  them  to  use  what  I  have  called 
collective  bargaining.      There  is  no  doubt  of  this, 


FORECAST  OF  THE   FUTURE  133 

and  I  for  one  should  be  glad  to  see  the  bulk  of 
the  industrial  laborers  of  the  country  organized  in 
definite  unions,  and  conduct  their  interests  in  this 
way.  Most  progressive  employers  are  now  begin- 
ning to  find  the  advantage  of  having  a  definite 
and  responsible  body  to  deal  with,  so  that,  when 
they  make  an  agreement  with  them,  it  amounts 
to  something,  rather  than  with  irresponsible  work- 
men. Most  employers  are  more  and  more  will- 
ing to  practically  arbitrate  wherever  they  can  find 
such  a  responsible  body.  The  difficulty  to-day  is 
quite  as  much  in  getting  the  laborers  to  organize 
into  such  definite  unions,  with  the  further  diffi- 
culty that  the  laborers,  when  they  have  so  organ- 
ized, find  it  difficult  to  enforce  their  own  rules, 
and,  consequently,  any  contract  or  compromise 
they  may  make  even  as  against  their  own  members. 
The  evidence  of  the  English  Commission  was  fiill 
of  instances  where  men  who  have  endured  the 
miseries  of  a  strike  for  months  at  a  time  without 
a  murmur,  and  in  perfect  obedience  to  their  offi- 
cials, yet,  on  the  most  trilling  grounds,  refiised  to 
endorse  the  terms  which  those  officials  had  ar- 
ranged with  the  employers.  It  is  to  combat  this 
difficulty  that  many  unions  make  strict  rules 
against  members  leaving  their  employment  with- 
out the  sanction  of  their  union,  the  offence  being 
punishable  by  expulsion.  How  can  the  employ- 
ers bargain  or  arbitrate  with  employees,  even  with 


134        LABOR  IN   ITS  RELATIONS  TO  LAW 

the  unions,  when  the  members  of  the  unions  arc 
not  true  to  the  union  itself?  In  the  English 
strike  of  the  blast  furnace  men,  after  the  union 
had  agreed  upon  a  satisfactory  sliding  scale  of 
wages,  the  engine-men  and  crane-men  left  the 
association  and  set  up  an  independent  organiza- 
tion of  their  own.  As  was  pointed  out  by  Mr. 
Bell  before  the  English  Commission  of  Labor,  it 
would  be  impossible  to  bargain  with  the  unions  if 
this  sort  of  thing  happened  often,  for  one  cannot 
negotiate  with  a  body  that  one  cannot  grasp. 

The  usual  method  the  union  employs  for  con- 
trolling these  members  is  the  beneficiary  fund,  in 
which  they  all  have  an  interest,  and  which  they 
are  liable  to  lose  if  expelled  from  the  union. 
The  English  statute,  you  will  remember,  while 
recognizing  the  legality  of  trades-unions,  makes  a 
special  exception  that  the  contracts  made  between 
them  and  their  members  cannot  be  enforced  by 
either  side  in  the  courts.  This  was  done  at  the 
request  of  the  unions,  who  feared  endless  litigation 
with  their  own  members,  for  their  beneficiary 
funds  are  not  only  an  insurance  to  the  members 
(meeting  that  very  question  of  their  old  age 
which  we  discussed  a  moment  ago)  and  a  guaran- 
tee both  to  the  laborer  and  the  employer,  that 
any  collective  bargaining  made  by  the  unions  will 
be  carried  out  in  times  of  industrial  peace,  but  a 
fund  for  strikes  in  times  of  labor  war.     Now,  labor 


FORECAST  OF  THE  FUTURE       135 

leaders  tell  me  that  they  regard  this  last  function 
as  the  highest  purpose  of  the  fund.  In  other 
words,  they  desire  to  be  at  liberty  to  exhaust  the 
whole  accumulated  fund  in  a  strike,  if  necessary, 
in  spite  of  all  the  individual  contracts  they  may 
have  with  the  members  who  have  contributed  to 
it  for  death  benefits,  insurance  in  times  of  illness, 
support  while  out  of  work,  etc.  Of  course,  if  the 
union  with  its  fund  were  legalized  under  any  cor- 
poration law,  such  an  entire  application  of  the 
fund  to  strikes  might  be  a  breach  of  contract,  and 
would  certainly  be  a  breach  of  trust  from  which 
the  officers  of  the  trades-union  could  be  restrained 
at  suit  of  any  individual  member.  The  principle 
of  all  labor  combinations  up  to  date  has  been  to 
secure  the  greatest  possible  amount  of  power  by 
lawful  methods,  or  even  by  unlawful  combinations, 
while  not  assuming  any  responsil)ility  whatever, 
either  to  employers  or  to  their  own  members. 
Now,  I  am  well  aware  that  it  is,  at  first  sight,  an 
attractive  position  to  labor  to  be  in  the  position 
of  a  guerrilla  army,  which,  while  making  a  simul- 
taneous attack,  can  dissolve  at  the  moment  of  any 
defeat,  and  scatter,  so  that  while  it  may  sometimes 
win,  it  can  never  lose.  Nevertheless,  I  believe 
these  advantages  are  superficial,  and  the  true  in- 
terest of  labor  lies  the  other  way.  This  is.  after 
all,  like  the  position  of  slaves  or  savages.  No 
contracts  can  be  enforced  against  them  ;   they  can 


136        LABOR   IN   ITS   RELATIONS  TO   LAW 

scatter  in  the  woods  and  do  individual  damage 
when  as  an  army  they  have  yielded.  Never- 
theless, in  the  long  run,  while  their  outbreaks 
are  suppressed,  they  cannot,  by  peaceful  means, 
gain  much  for  themselves  as  a  class.  I  have  yet 
to  learn  that  it  is  a  blessing  to  a  free  citizen,  or  a 
free  body  of  citizens,  to  be  unable  to  make  an 
agreement  with  the  persons  with  whom  they  deal. 
Provided  only  the  civilization  of  a  country  be  di- 
versified enough  to  give  a  chance  for  every  man, 
the  true  power  of  labor  comes  from  its  being  in 
a  position  to  dictate  agreements  for  wages  and 
times  of  labor,  which  the  other  side  has  the  power 
to  make  ;  and  it  has  not  such  power  with  persons 
practically  incapable  of  contract.  And  this,  I 
think,  is  true  in  modern  times,  even  if  we  admit 
that  there  is  a  mass  of  unemployed  ready  to  come 
in  at  any  price,  for  that  very  power  of  responsi- 
ble combination  enables  the  workman  in  skilled 
trades — and  nowadays  all  trades  are  skilled — to 
put  up  a  barrier  against  such  outside  parties  by 
being,  as  a  body,  on  terms  of  contract  with  their 
own  employers,  far  more  effective  than  under  a 
system  of  every  man  for  himself. 

Remedies  open  to  Labor. 

If  you  agree  with  me  that  we  are  to  have  com- 
l)inations  of  labor  which  shall  bargain  collectiv'ely 
with  capital,  what  weapon  shall  they  have  for  en- 


FORECAST  OF  THE  FUTURE  137 

forcing  their  demands?  I  answer,  if  every  coml)i- 
nation  be  really  successful,  that  is,  if  it  include  the 
bulk  of  workmen  in  a  given  trade,  by  strikes — not 
by  boycotts,  except  of  the  merely  persuasive  kind, 
and  addressed  primarily  to  members  of  their  par- 
ty, that  is,  to  other  laborers.  The  fact  that  the 
striking  workmen  are  to  be  supported  during 
the  strikeout  of  union  funds  will  ultimately  prove 
a  sufficient  guaranty  at  least  oi priinx  facie  justifia- 
ble cause  ;  and  we  must  not  forget  that  there  is 
one  other  motive  of  a  union  strike  which  is  per- 
fectly legitimate ;  that  is,  as  was  well  pointed  out 
in  the  evidence  before  the  Labor  Commission,  in 
order  to  show  that  a  union  is  strong  enough  to  strike 
effectively,  both  for  the  purpose  of  convincing  the 
employer  tliat  the  strike  is  dangerous  to  him  and 
that  the  labor  body  striking  is  one  of  suflicient  im- 
l)ortance  to  deal  with  ;  and  for  the  i)urpose  of 
convincing  the  employee  tiiat  tlie  union  has  grown 
sufficiently  to  make  it  pay  for  them  to  sacrifice 
part  of  their  earnings  for  its  support.  There 
should,  of  course,  be  a  reasonable  ground  for  a 
strike,  but  if  the  union  approach  the  employers 
with  a  definite  and  reasonable  request,  and  a 
steady  determination  not  to  take  "no"  for  an 
answer,  it  will  at  once  gain  the  confidence  of  the 
workmen  ;  and  if  it  convinces  the  employers  that 
it  has  gained  the  confidence  of  the  workmen,  the 
battle  is  already  half  won.     The  evidence  before 


1 38        LABOR   IN  ITS  RELATIONS  TO  LAW 

the  English  Commission  showed  that  employers 
seldom  fight,  or  care  to  fight,  against  an  organiza- 
tion which  they  feel  really  has  the  unqualified  sup- 
port of  its  members.  Industrial  warfare,  there- 
fore, is  sometimes  necessary  to  prove  the  right  of  a 
union  to  its  existence.  Hence,  strikes,  and  hence, 
too,  the  reason  that  the  weaker  and  younger  the 
union,  the  more  strikes  it  is  bound  to  declare. 
But  the  reason  of  it  is,  and  the  facts  in  England 
at  least  show,  that  as  unions  grow  and  become 
generally  effective  and  recognized,  strikes  decrease 
in  number.  They  are  then  in  a  position  not  only 
to  demand  arbitration,  but  really  to  get  that  best 
kind  of  arbitration,  which  consists  in  the  meeting 
of  the  employers  and  the  employed,  both  with 
full  power  to  settle  the  question,  and  with  the  in- 
tent to  do  so  in  a  reasonable  way. 

This  brings  us  to  the  question  of  the  settling  of 
strikes.  In  so  far  as  they  come  to  actual  disorder, 
I  have  expressed  it  as  my  opinion  that  they  should 
be  settled  only  by  the  ordinary  coarse  of  the 
criminal  law.  In  so  far  as  a  boycott  is  a  conspir- 
acy to  do  a  wrongful  thing,  or  to  wrong  a  defi- 
nite person,  I  think  the  law  of  criminal  conspiracy 
is  in  this  country  adequate ;  but  the  greater  and 
higher  questions,  where  no  such  wrong  is  com- 
mitted on  both  sides,  where  there  is  neither  con- 
spiracy, disorder,  or  intimidation,  how  are  these 
real  issues  to  be  settled  ? 


FORECAST  OF  THE  FUTURE       139 

Arbitration  and  Conciliation. 

Much  has  been  said  of  courts  and  arbitration, 
and  here  again  I  have  no  desire  to  minimize  their 
vahie.  I  believe  furtlier  laws  should  be  passed  to 
establish  them,  and  I  ho[)e  such  laws  will  be  taken 
advantage  of.  Seven  or  eight  of  our  States  already 
have  elaborate  laws  embodying  not  only  a  state 
board  of  arbitration  and  conciliation,  but  allowing 
the*  creation  of  private  boards  to  settle  special  con- 
troversies in  any  particular  trade  or  locality.  It 
has  been  found  by  experience  that  a  permanent 
State  board  is  not  a  good  body  to  settle  trade  dis- 
putes in  a  great  bulk  of  the  cases.  Modern  indus- 
tries are  subject  both  to  local  conditions  and  pe- 
culiarities of  their  special  product  and  of  the 
market  for  it.  In  the  Haverhill  shoe  strike  last 
winter  we  were  told  that  the  conditions  of  the 
Haverhill  trade  were  so  peculiar  that  even  a  body 
familiar  with  the  general  shoe  industry,  or  with 
the  shoe  industry  of  other  places,  would  be  for 
that  very  reason  incompetent  to  settle  the  ques- 
tions which  arose  at  Haverhill.  That  part  of  arbi- 
tration statutes,  therefore,  which  provides  for  the 
mutual  creation  of  a  board  chosen  from  among  per- 
sons conversant  with  the  particular  industry  is  a 
most  valuable  one.  And  this  brings  us  to  the  main 
point  about  arbitration,  which  is,  that  it  is,  in  its 
essence,  vohmtary.  1  think  I  may  state  broadly 
that  involuntary  arbitration  is  entirely  out  of  the 


140        LABOR  IN  ITS  RELATIONS  TO  LAW 

question.  If  the  government  choose,  it  may  make 
arbitration  compulsory  upon  corporations,  which 
are  its  creatures  ;  so,  the  United  States  Govern- 
ment, having  half  taken  over  the  railroads  under 
the  Interstate  Commerce  Act,  might  wholly  take 
them  under  guardianship  and  pass  such  a  law  as  to 
them.  There  is  already  a  general  act  providing 
for  voluntary  arbitration,  and  authorizing  the 
President  to  appoint  a  committee  of  arbitrators  to 
investigate  and  report.  It  was  under  this  statute 
that  Mr.  Cleveland  acted  at  the  time  of  the  Chi- 
cago riots.  Mr.  Wright,  the  United  States  Com- 
missioner of  Labor,  has  recently  gone  very  far  in 
the  direction  of  recommending  a  statute  providing 
even  for  involuntary  arbitration,  at  least  in  the 
case  of  railroads.  Nevertheless,  until  the  Federal 
Government  is  willing  to  undertake  to  run  the 
railroads  of  the  country,  and  subject  our  already 
over-strained  party  system  to  the  tremendous  re- 
sponsibility and  temptation  that  would  be  imposed 
upon  any  administration  by  so  enormously  increas- 
ing the  civil-service  list,  I  believe  such  statutes 
would  be  unwise,  probably  unconstitutional,  and 
certainly  unjust,  for  the  reason  that  they  would  be 
one-sided.  The  laborers  themselves  are  pretty 
well  agreed  that  they  do  not  want  involuntary  ar- 
bitration, and  thev,  for  their  part,  will  not  submit 
to  it.  Moreover,  the  word  "arbitration"  be- 
comes a  misnomer  when  applied  to  an  involuntary 


FORECAST  OV   THE  FUTURE       141 

proceeding.  Such  a  proceeding  differs  in  no  par- 
ticular from  an  ordinary  suit  in  court.  You  are 
simply  establishing  a  new  and  peculiar  court  with 
extraordinary  powers  which,  uliiniately,  by  practice 
and  the  precedent  of  its  own  decisions,  would  dif- 
fer in  no  particular  from  any  court  now  existing. 
There  is  no  advantage,  therefore,  in  involuntary 
arbitration  ;  but  voluntary  arbitration,  and,  par- 
ticularly, voluntary  conciliation  and  investigation 
of  trade  disputes,  is  certainly  a  wise  thing,  and  we 
can  only  hope  that  its  use  will  increase  in  the 
future.  But,  after  all,  the  best  remedy  is  not  in  the 
arbitration,  not  even  the  conciliation  of  any  out- 
side party,  but  the  fair  bargaining  of  both  sides 
coming  together  with  mutual  power  and  mutual 
responsibility.  They  may,  of  themselves,  establish, 
as  has  fre([uently  been  done  in  England,  special 
commissions  of  persons  in  the  trade,  who  may  ar- 
bitrate between  them  when  they  di.sagree ;  and 
this  remedy  when  sanctioned,  not  created,  by  the 
State,  more  elastic  and  intelligent  than  any  gov- 
ernmental creation,  is  the  best  board  of  arbitration 
after  all.  I  believe  that  with  the  developments 
and  improvements  I  have  suggested  in  the  collec- 
tive labor  relation,  we  shall  find,  as  they  have  in 
England,  that  much  of  the  need  for  artificial  aibi- 
tration  has  gone  by. 


142        LABOR  IN  ITS  RELATIONS  TO  LAW 

Trusts. 

As  to  the  question  of  trusts,  the  main  interest  of 
the  laborer  in  them  is  that  of  the  consumer.  So 
far  as  trusts  affect  the  employment  relation,  I  am 
inclined  to  think  that  any  powerful  monopoly  is, 
on  the  whole,  injurious.  Anything  which  so 
greatly  extends  the  power  of  one  side  in  that  col- 
lective bargaining  we  have  so  often  mentioned, 
strengthens  him  as  against  the  other.  It  is  easy 
to  see,  for  instance,  assuming  all  the  cotton-mills 
in  the  country  to  be  in  one  trust,  how  their  power 
of  black-listing  could  be  infinitely  extended. 
Black-listing,  the  prevention  of  laborers  who  have 
once  struck  from  getting  employment  of  other 
employers,  may  now  be  forbidden  by  law,  and 
it  is  so  forbidden  in  many  States.  If  all  the  em- 
ployers were  one  body,  there  would  be  no  possible 
legal  method  of  preventing  this.  Black-listing 
would  cease  to  be  boycotting,  but  merely  the  re- 
fusal of  the  employer  to  re -employ  an  employee 
who  has  voluntarily  left  his  service  by  strike  ;  and 
despite  the  argument  that  may  lie  in  the  view  so 
well  expressed  by  Professor  Jenks,  it  seems  to  me 
that,  on  the  whole,  the  effect  of  monopolies  is  de- 
cidedly to  limit  the  demand  for  labor.  If  all  of  a 
trade  is  in  a  monopoly,  only  that  labor  will  be  em- 
ployed which  is  really  necessary  for  the  amount  of 
output,  which  is  really  necessary  or  profitable. 
One  great  advantage  to  the  laborer  of  independent 


FORECAST  OF  THE  FUTURE       143 

individualistic  industries  is  that  everybody  is  con- 
tinually emharkinp^  in  enterprises  in  the  hope  of 
making  a  profit  which  may  never  be  realized,  but 
the  laborer  duly  gets  his  wages  therefor.  I  think 
I  can  illustrate  what  I  mean  by  a  clear  example. 

The  Baring  Failure. 

1  have  been  told  in  I^ngland  that  the  spectacle 
of  the  Baring  failure  had  a  very  soothing  influence 
upon  labor  agitation.  It  was  a  great  objectdesson  ; 
in  it  the  workmen  of  the  I'^nglish  industrial  world 
saw  a  vast  sum  of  money,  probably  as  much  as  one 
hundred  and  fifty  millions  of  dollars,  absolutely 
sunk  by  capitalists,  mainly  in  giving  employment 
to  labor.  The  great  bulk  of  the  money,  as  was 
well  known  by  them  at  the  time,  went  in  the  pros- 
ecution of  great  industrial  enterprises  or  internal 
improvements  in  several  parts  of  the  world,  and  the 
money  was  lo.st  by  actual  count  very  largely  in 
wages.  Now,  the  State,  still  less  a  monopoly,  will 
never  attempt  unprofitable  enterprises.  Under  an 
individualistic  system  of  private  competition  a  great 
many  more  sugar  refineries  were  running  in  this 
country  than  were  necessary  to  meet  the  demand, 
but  the  Sugar  Trust  has  closed  many  of  them. 
Nothing  is  more  usual  than  for  the  amount  of  wages 
paid  in  an  enterprise  to  exceed  the  value  of  the  total 
output. 

It  can  be  proved  that  the  output  of  most  gold- 


144        LABOR  IN  ITS  RELATIONS  TO  LAW 

mines  does  not  amount  to  the  actual  money  sent 
into  the  camp  for  working  them.  I  have  been 
assured  that  in  Cripjjle  Creek,  CoL  —  rich  as 
that  locahty  is  in  gold  —  the  amount  of  money 
sent  into  a  camp  in  the  form  of  supplies  and 
money  to  pay  labor  far  exceeds  the  value  of  the 
gold  that  actually  goes  out.  In  other  words, 
mining,  like  many  other  kinds  of  industry,  is  a 
lottery ;  viewed  as  a  whole  it  does  not  really  pay. 
People  embark  their  money  in  the  hope  of  getting 
a  prize,  and  that  money  goes  mainly  to  pay  the 
wages  of  labor.  I  hold  strongly  that  under  a  sys- 
tem of  absolute  state  socialism  there  would,  be  far 
less  demand  for  labor  than  there  is  to-day. 

True  Path  of  Progress. 

In  association,  therefore,  in  collective  bargain- 
ing, not  in  going  back  on  all  past  history  and 
giving  up  the  contract,  but  by  extending,  strength- 
ening, and  improving  it,  lies,  as  it  seems  to  me,  the 
path  of  the  future.  Just  as  the  laborer  employed 
even  by  the  day  assumes  a  higher  relation  than  the 
slave  or  serf,  so  the  laborer  employed  by  definite 
intelligent  contract  is  in  a  higher  relation  than  he  ; 
and,  most  of  all,  the  laborer  employed  under  a  con- 
tract made  by  all  the  laborers  of  his  class,  made  by 
a  contracting  party  with  power  at  least  equal  to 
that  of  the  employers,  greater  than  that  of  the  in- 
dividual employer,  is  in  a  position  better  still.    The 


FORECAST  or  Tlit   FUTURE  145 

Haverhill  strikers  last  winter  were  said  to  have 
struck,  against  the  contract  system.  What  they 
really  struck  against  was  a  bad  contract,  which, 
individually,  in  some  cases,  they  had  not  the  in- 
telligence to  refuse  to  sign,  and  which,  collectively, 
they  had  not  the  power  to  resist  or  modify.  Indefi- 
nite relation  is  the  e.ssence  of  slavery.  Contract  is 
the  charter  of  freedom.  With  the  power  to  demand 
and  the  power  to  enforce  laljor  contracts,  for  wages 
and  for  times  which  shall  be  the  utmost  the  em- 
ployer can  afford  to  concede,  and  with  intelligent 
sympathy  on  tlie  part  of  the  public,  the  newspaper 
press,  and  the  consumer,  a  .symi)athy  not  blind,  but 
an.xious  to  support  labor  in  its  demand  for  a  con- 
tract which  is  rea.sonal)le,  botii  by  i)ublic  opinion 
and  by  the  enactment  of  laws  where  they  are  in- 
disjjensable,  I  hold  that  the  improvement  of  the 
condition  of  industrial  labor  may  make  greater 
strides  in  the  next  century  even  than  it  has  in  the 
last,  and  that,  witliout  jeopardizing  any  right,  any 
freedom,  or  any  object,  which  we  .\mcri(  ans  hold 
dear. 


NO IV  READY. 

LABOR    IN    ITS    RELATIONS 
TO    LAW. 

Four  Lectures  delivered  at  the  Plymouth  School 
of  Ethics,  July,  1895. 

By  F.  J.  STIMSON, 

Author  of  "  American  Statute  I^.nw,"  "  Hand-Book  to  the   Labor   Law  of  the 

United  States,"  Secretary  of  the  National  Conference  of  State 

Commissions  upon  Uniformity  of  Law,  etc.,  etc. 


lOtno,  75  cents  net. 


This  book  will  serve  as  a  convenient  and  iiiterestinR  com- 
mentary on  the  author's  forthcominR,  more  formal  treatise  upon 
the  law  of  the  suhjcct,  as  well  as  a  popular  statement  of  the  growth 
and  culmination  of  labor  problems,  the  effect  of  recent  United 
States  statutes,  and  the  attitude  both  of  American  courts  and  of 
the  best  expert  opinion  on  the  future  of  the  question. 

Mr.  Stimson  is  well  known  by  his  two  important  volumes  on 
American  Statute  Law,  and  as  an  autliority  upon  statutes  and  con- 
stitutional questions  arising  therefrom.  Of  these  four  lectures,  the 
first  is  upon  the  History  of  the  Law  of  Labor,  the  second  upon  the 
Employment  Contract,  the  third  upon  Strikes  and  Boycotts  and 
Injunctions,  and  the  fourth  is  devoted  to  a  F"orecast  of  the  Future, 
with  a  reasonable  statement  of  the  positions  of  both  sides,  a  con- 
sideration of  impossible  claims,  and  a  reasonable  statement  of  the 
possible  solution.  The  popular  nature  of  the  subject  and  the 
simplicity  of  the  style  make  this  little  book  eminently  one  for 
general  reading. 


Por  sale  by  all  booksellers,  or  sent,  post-f'iiul,  on   receipt   of 
price,  by 

CHARLES   SCRIBNER'S   SONS, 

153-157  Fifth  Avenue,  New  York. 


IN  PRESS.      BY   THE  SAME  AUTHOR. 

HAND-BOOK    TO 

THE    LABOR    LAW    OF    THE 

UNITED    STATES. 


I21UO.     In  press. 

This  book  is  not  intended  to  be  a  law  text-book,  but,  as  its  title 
indicates,  a  popular  hand-book  to  the  law  of  labor,  employers'  con- 
tracts, strikes,  boycotts,  and  the  relation  of  the  wage  earners  both 
to  ordinary  employers  and  to  railway  or  other  corporations  and 
trusts,  as  it  exists  in  the  several  States  of  the  Union  to-day. 

It  is  well  known  that  the  labor  question  has  had  more  develop- 
ment, both  by  a  statute  and  court  decision,  during  the  last  five 
years  than  for  centuries  previous,  and  there  is  at  present  no  book 
completely  covering  the  subject.  Mr.  Stimson's  work  is  intended  to 
supply  this  want.  It  will  contain  a  complete  statement  of  the  vari- 
ous attempts  made  by  statute,  in  the  several  States  of  the  country, 
to  deal  with  the  labor  question  ;  and  will  concisely  show  both  the 
statute  law  and  the  view  taken  by  the  courts  upon  all  matters  of 
interest  to  the  wage-earner  up  to  the  time  of  the  summer  of  1S95. 

Among  the  subjects  treated  of  will  be  the  regulation,  by  statute 
or  otherwise,  of  hours  of  labor  ;  of  the  labor  of  women  and  children; 
of  labor  done  on  public  works,  or  in  special  occupations  ;  and  of  all 
the  laws  which  have  been  passed  on  these  subjects,  as  well  as  upon 
that  of  the  rate  and  method  of  payment  of  wages,  including  those 
laws  which  have  been  declared  unconstitutional  by  the  courts. 
It  will  also  treat  the  general  question  of  the  employment  contract, 
and  trace  its  development  in  modern  law,  with  special  reference  to 
recent  statutes  concerning  intimidation,  obligatory  membership  of 
benefit  societies,  prison  labor,  co-operation,  and  profit-sharing; 
and  the  statutes  concerning  factory  inspection  and  the  regulation 
of  sweatshops,  with  their  interpretation  by  the  courts. 

Particular  attention  will  be  given  to  the  growth  of  the  law  of 
conspiracy,  with  reference  to  the  legality  of  strikes  and  boycotts, 
trades  unions,  and  the  modern  regulation  and  protection  of 
unions  for  the  benefit  of  employees.  The  relation  of  corpora- 
tions to  labor  will  also  be  discussed,  and  particularly  that  of 
railroad  corporations  through  the  recent  statutes  of  the  United 
States  regulating  trusts  and  interstate  commerce,  and  the  liability 
of  strikers  and  others,  both  to  the  criminal  law  and  to  summary 
process  of  the  Federal  equity  courts,  will  be  fully  considered,  as 
well  as  the  progress  already  made  in  legal  provision  or  recognition 
of  machinery  for  arbitration  and  conciliation,  whether  by  the  State 
or  by  private  parties. 

As  the  book  is  intended  to  be  a  hand-book  for  general  use,  it  will 
not  be  over-burdened  with  legal  citations,  reference  being  given 
only  to  all  the  statutes  so  far  enacted  bearing  upon  the  subject,  and 
to  the  leading  decisions  of  courts  where  such  exist. 

Eor  sale  by  all  booksellers,  or  sent,  post-paid,  on  receipt  0/ price,  by 

CHARLES    SCRIBNER'S   SONS, 

153-157  Fifth  Avenue,  New  York. 


"'■  'late  stamped  below 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  962  975    9 


HD 

7  809 

S85 


HOOL 


